BHIMNATHWALA v. NEW JERSEY STATE JUDICIARY, FAMILY DIVISION

*NOT FOR PUBLICATION*

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

:

HEMANT G. BHIMNATHWALA, :

: Civil Action No. 19-21389 (FLW) (LHG)

Plaintiff, :

:

v. :

: OPINION

NEW JERSEY STATE JUDICIARY, :

FAMILY DIVISION, et al., :

:

Defendants. :

:

WOLFSON, Chief Judge:

Pro se Plaintiff Hemant G. Bhimnathwala (“Plaintiff”) has filed a Complaint against

Defendants Lopa Shah (“Shah”); the State of New Jersey Judiciary, improperly pled as the New

Jersey State Judiciary, Family Division (the “New Jersey Judiciary”); the Honorable Stuart

Rabner, Chief Justice of the New Jersey Supreme Court; the Honorable Lisa P. Thornton, A.J.S.C.;

the Honorable Teresa Ann Kondrup-Coyle, J.S.C.; the Honorable Honora O’Brien Kilgallen,

J.S.C.; Tonya Hopson; Rebekah Heilman; and Joanne McLaughlin (collectively, the “State

Defendants),1 alleging that his constitutional rights were violated in the course of his divorce in

the New Jersey Superior Court, Monmouth Vicinage. Before the Court are Plaintiff’s Motion for

Summary Judgment against Shah, his former wife, and for Default Judgment against the State

Defendants; the State Defendant’s Cross-Motion to Vacate Default and Dismiss the Complaint

pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6); and Shah’s Motion to Dismiss.

1 The Court refers to Chief Justice Rabner, Judge Thornton, Judge Kondrup-Coyle, Judge

Kilgallen, Hopson, Heilman, and McLaughlin, collectively, as the “Individual State Defendants.”

For the reasons set forth herein, Plaintiff’s Motion for Default Judgment against the State

Defendants is DENIED, and the State Defendants Cross-Motion to Vacate and Dismiss the

Complaint is GRANTED. Plaintiff’s Motion for Summary Judgment against Shah is DENIED.

Shah’s Motion to Dismiss is GRANTED. Plaintiff’s claims are DISMISSED in their entirety.

I. BACKGROUND AND PROCEDURAL HISTORY

For the purposes of these motions, the Court accepts as true the relevant facts gleaned from

Plaintiff’s Complaint and the documents attached thereto.

This action stems from divorce proceedings in the Superior Court of New Jersey,

Monmouth County, between Plaintiff and his former wife, Shah. Plaintiff and Shah separated in

March 2006, and it appears that both filed for divorce later that year. (See Compl. ¶¶ 11, 44.)

Judge Kilgallen presided over the divorce proceedings, and a final Judgment of Divorce (“JOD”)

was entered on February 27, 2008. (Id. ¶¶ 12, 14.) Incorporated into the JOD was a matrimonial

settlement agreement (“MSA”), which provided primary custody of Plaintiff’s two children to

Shah and provided for certain parenting time for Plaintiff. (See id. ¶¶ 12, 15, 122.) It appears that

McLaughlin, a Family Counseling Specialist in the Monmouth County Vicinage Family Court,

was involved in Plaintiff and Shah’s mediation and the negotiation of the terms of the MSA. The

MSA has since been enforced in a number of post-judgment proceedings.

Pursuant to the terms of the MSA, Plaintiff and Shah were to split custody of their children

equally during the children’s winter break. (Id. ¶ 102.) In the winter of 2009, Shah wanted to take

the children to India for the entirety of winter break. (Id.) Plaintiff objected to the trip because it

would cause him to lose his parenting time. (Id.) While unclear from the Complaint, it appears

that Plaintiff filed a motion related to this dispute and, in response, Judge Kilgallen ruled that Shah

could take the children to India for the entirety of their winter break. (Id.)

Thereafter, in March 2010, Plaintiff filed a motion to renegotiate the financial settlement

set forth in the MSA in light of changed financial circumstances resulting from the 2008 recession.

(Id. ¶ 103.) It appears that Judge Thornton2 presided over this motion and, following oral

argument, denied Plaintiff’s application. (Id. ¶ 106.) Plaintiff alleges that Judge Thornton did not

provide any reasoning for her decision. (Id.)

Plaintiff also alleges that on November 7, 2018, Judge Kondrup-Coyle denied his motion

to enforce his rights under the MSA, to have his youngest child visit him in Chicago for

Thanksgiving break. (Id. ¶ 108.) Plaintiff alleges that he had purchased tickets for his child’s visit

in January 2018, and thereafter, in the summer of 2018, Shah informed Plaintiff that the child

would not be spending Thanksgiving with him. (Id. ¶ 109.) Thus, on August 17, 2018, Plaintiff

filed a motion to enforce the MSA. (Id. ¶ 110.) Plaintiff alleges that Judge Kondrup-Coyle did

not issue an order resolving the motion until November 7, 2018, which, he claims, deprived him

of the opportunity to appeal her decision. (Id. ¶ 112.)

Following Judge Kondrup-Coyle’s denial of Plaintiff’s motion, Plaintiff mailed a letter to

Hopson, the Chief EEO/AA officer for the New Jersey Judiciary. (Id. ¶ 114.) Plaintiff alleges that

Hopson is responsible for “addressing violations of the anti-discrimination policy of the State of

New Jersey Judiciary.” (Id.) In his November 2018 letter, Plaintiff alleged that fathers suffer

systemic discrimination by New Jersey Family Court judges and, further, claimed that Judge

Kondrup-Coyle intentionally discriminated against him by ruling in favor of Shah. (See id. ¶¶ 112,

115.) Hopson responded to Plaintiff via letter dated March 20, 2019, and stated that these issues

“fall outside the authority of her office.” (Id. ¶ 115.) Plaintiff claims that following his receipt of

2 Confusingly, Plaintiff alleges that Judge Kilgallen also considered the March 2010 motion

and denied it on the grounds “that the court did not keep a copy of the MSA.” (Compl. ¶ 103.)

this letter, he received a telephone call from Heilman, an ombudsman in the Monmouth County

Family Court. (Id. ¶ 126.) Plaintiff claims that Heilman “declared that there was no

discrimination,” based on her understanding that women have also complained that “the court was

unfair.” (Id.) Plaintiff contends that this call was intended to “dissuade [him] from filing any

appeal or seeking relief in federal courts.” (Id.) On December 5, 2018, Plaintiff mailed a similar

letter to Chief Justice Rabner, in which Plaintiff complained of alleged “systemic” discrimination

against fathers. (Id. ¶ 117.) Plaintiff alleges that on December 12, 2018, he received a letter from

the New Jersey Supreme Court Clerk’s office denying any involvement. (Id.)

Plaintiff filed the instant Complaint on December 12, 2019. (See Compl.) In the

Complaint, Plaintiff asserts claims pursuant to 42 U.S.C. § 1983 for violation of his constitutional

rights. Plaintiff alleges that, pursuant to the Equal Protection Clause of the Fourteenth

Amendment, he had the right to equal parenting time on par with that received by Shah.3 (Id. ¶

81.) Plaintiff contends that the State Defendants deprived him of that right by consistently ruling

in favor of Shah in resolving their divorce and post-judgment custody disputes. (See id.)

Accordingly, Plaintiff seeks the following relief: (1) compensatory damages for emotional distress

and damage to his reputation; (2) repayment of all child support paid to Shah, including interest;

(3) recalculation of the amount of alimony that Shah should pay to Plaintiff; (3) compensation for

Plaintiff’s loss of parenting time; (4) an injunction requiring the New Jersey Judiciary to address

3 Specifically, Plaintiff contends that the Supreme Court’s decision in Obergefell v. Hodges,

576 U.S. 644 (2015), which held that same-sex couples may not be denied the fundamental right

to marry under the Due Process and Equal Protection clauses of the Fourteenth Amendment, also

applies to child custody and child support. Thus, Plaintiff asserts, without any legal basis, that the

Fourteenth Amendment requires a presumption of equal, joint custody of children in child custody

proceedings. (See Compl. ¶ 24.)

gender based discrimination in divorce and child custody matters and to publish statistical data to

that effect; (5) punitive damages; and (6) costs and reasonable attorney fees. (Id. at 35–36.)

On April 12, 2020, Plaintiff filed a request for default against the State Defendants for their

failure to file an answer or otherwise respond to the Complaint. (ECF No. 7.) The Clerk of the

Court entered default on April 13, 2020. On January 17, 2020,4 Shah, acting pro se, filed a letter

responding to the Complaint and requesting that it be dismissed. (ECF No. 10.) On May 20, 2020,

Plaintiff filed a motion for default judgment against the State Defendants and for summary

judgment against Shah. (ECF No. 12.) In opposition, the State Defendants filed a cross-motion

to vacate default and to dismiss the Complaint pursuant to Rules 12(b)(1) and 12(b)(6). (ECF No.

24.)

II. STANDARD OF REVIEW

A. Rule 12(b)(1)

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 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

4 While Shah’s letter response is dated January 17, 2020, it was not docketed by the Clerk

of the Court until April 29, 2020.

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. Rule 12(b)(6)

Under Federal Rule of Civil Procedure 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 reasonable

reading of the complaint, the plaintiff may be entitled to relief.” Phillips v. Cty. 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

Atl. 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).

Here, Plaintiff is proceeding pro se. “The obligation to liberally construe a pro se litigant's

pleadings is well-established.” Higgs v. AG of the United States, 655 F.3d 333, 339 (3d Cir. 2011);

see also Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 52021 (1972).

“Courts are to construe complaints so as to do substantial justice, keeping in mind that pro se

complaints in particular should be construed liberally.” Alston v. Parker, 363 F.3d 229, 234 (3d

Cir. 2004) (internal quotation marks and citation omitted). “Liberal construction does not,

however, require the Court to credit a pro se plaintiff's ‘bald assertions’ or ‘legal conclusions.’”

Grohs v. Yatauro, 984 F. Supp. 2d 273, 282 (D.N.J. 2013) (quoting Morse v. Lower Merion Sch.

Dist., 132 F.3d 902, 906 (3d Cir. 1997)). In that regard, “pro se litigants still must allege sufficient

facts in their complaints to support a claim.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245

(3d Cir. 2013). “Even a pro se complaint may be dismissed for failure to state a claim if the

allegations set forth by the plaintiff cannot be construed as supplying facts to support a claim

entitling the plaintiff to relief.” Grohs, 984 F. Supp. 2d at 282.

III. DISCUSSION

A. State Defendant’s Motion to Vacate Default and Plaintiff’s Motion for Default

Judgment

First, Plaintiff seeks default judgment against the State Defendants who, he alleges, failed

to file an answer or otherwise respond to the Complaint. The State Defendants, in turn, move to

set aside default because (1) they were not properly served with the Complaint and (2), if the Court

determines service was proper, good cause exists to vacate default.

Pursuant to Federal Rule of Civil Procedure 55(c), a court “may set aside an entry of default

for good cause.” Fed. R. Civ. P. 55(c); see also Mrs. Ressler’s Food Prods. v. KZY Logistics, LLC,

675 F. App’x 136, 139 (3d Cir. 2017). In considering whether to vacate default, a court should

consider (1) whether the plaintiff will be prejudiced by a vacatur of default, (2) whether the

defendant has a meritorious defense, and (3) whether the defendant’s culpable conduct led to the

entry of default. See Feliciano v. Reliant Tooling, Co., 691 F.2d 653, 656 (3d Cir. 1982); see also

Sourcecorp Inc. v. Croney, 412 F. App’x 455, 459 (3d Cir. 2011). However, an entry of default

may be set aside without consideration of these factors where the entry of default was improper.

See Gold Kist, Inc. v. Laurinburg Oil Co., Inc., 756 F.2d 14, 19 (3d Cir. 1985); Mettle v. First

Union Nat. Bank, 279 F. Supp. 2d 598, 603 n.3 (D.N.J. 2003) (“As this Court finds that entry of

default against First Union is void based on the improper service of the summons and complaint,

the Court need not consider the facts set forth in Gold Kist.”). Where default was entered without

proper service of the complaint, it is “a fortiori void, and should be set aside.” Gold Kist, Inc.,

756 F.2d at 19; see also Grand Entertainment Grp. v. Star Media Sales, Inc., 988 F.2d 476, 493

(3d Cir.1993) (finding that district court improperly entered default where defendants had not been

properly served); Anderson v. Mercer Cty. Sheriff’s Dept., No. 11-7620, 2013 WL 5703615, at *3

(D.N.J. Oct. 17, 2013).

The Court first assesses whether the Individual State Defendants, i.e., Chief Justice Rabner;

Judge Thornton, Judge Kondrup-Coyle, Judge Kilgallen, Hopson, Heilman, and McLaughlin, were

properly served. Federal Rule of Civil Procedure 4(e) provides that an individual may be served

by:

(1) following state law for serving a summons in an action brought in

courts of general jurisdiction in the state where the district court is

located or where service is made; or

(2) doing any of the following

(A) delivering a copy of the summons and of the complaint

to the individual personally;

(B) leaving a copy of each at the individual’s dwelling or

usual place of abode with someone of suitable age and

discretion who resides there; or

(C) delivering a copy of each to an agent authorized by

appointment or by law to receive service of process.

Fed. R. Civ. P 4(e)(1)–(2).5 Because Plaintiff sues the Individual State Defendants in both their

individual and official capacities, he is required to properly serve the defendants in both capacities.

See Micklus v. Carlson, 632 F.2d 227, 240 (3d Cir. 1982) (“Micklus concedes that the requirements

of Rule 4(d)(1) were not met. He nevertheless argues that once Carlson was properly served in his

5 The New Jersey Court Rule that governs service of an individual is modeled after Rule 4(e)

and provides that to serve “a competent individual if the age of 14 or older,” the summons and

complaint shall be delivered “to the individually personally, or by leaving a copy thereof a the

individual’s dwelling or usual place of abode with a competent member of the household of the

age of 14 or older then residing therein, or by delivering a copy thereof to a person authorized by

appointment or by law to receive service of process on the individual’s behalf.” N.J. Ct. R. 4:4-

4(a)(1).

official capacity, he was properly before the court in both individual and official capacities. We

reject this argument.” (citation omitted)); see also Dougherty v. Dupes, No. 17-1541, 2018 WL

1696651, at *9 (M.D. Pa. Apr. 6, 2018) (“Jared Dupes is sued in his individual capacity and his

‘supervisory capacity,’ which the court interprets to mean individual and official capacities. Thus,

service of original process must be made on Jared Dupes in both of these capacities.”).

Plaintiff served Judge Thornton, Judge Kondrup-Coyle, Judge Kilgallen, Heilman, and

McLaughlin by leaving copies of the summons and Complaint with Bidwell Medley, an

Operations Specialist, at the Monmouth County Superior Court in Freehold, New Jersey. (See

ECF No. 6.) Plaintiff additionally sent the summons and Complaint to these Defendants by

certified mail to the Monmouth County Superior Court. (See id.) However, this service does not

comply with either Rule 4 or the New Jersey Court Rules for service of an individual. The Rules

require that an individual be served by either delivering a copy of the summons and complaint to

the individual personally, leaving a copy with a suitable individual at their dwelling, or delivering

a copy to an agent authorized to receive service of process. See Fed. R. Civ. P. 4(e). Furthermore,

Defendants contend, and Plaintiff does not refute, that Medley is not authorized to receive service

of process on behalf of these Defendants. Accordingly, I find that Judge Thornton, Judge

Kondrup-Coyle, Judge Kilgallen, Heilman, and McLaughlin were not properly served in either

their individual or official capacities.

Nor were Chief Justice Rabner and Hopson properly served. Plaintiff served Chief Justice

Rabner by leaving a copy of the summons and Complaint with Dawn Bronston, a “judiciary clerk,”

at the Richard J. Hughes Justice Complex in Trenton, New Jersey. (ECF No. 6.) Plaintiff served

Hopson by leaving the summons and Complaint with Deanna Williams, also a “judiciary clerk,”

at the Richard J. Hughes Justice Complex. Again, this service did not comply with the rules for

serving an individual as there is no indication that Bronston and Williams were authorized to

accept service on behalf of Chief Justice Rabner and Hopson, respectively. Therefore, I find that

Chief Justice Rabner and Hopson were not properly served with the summons and Complaint.

Finally, the Court finds that Plaintiff similarly failed to properly serve the New Jersey

Judiciary. Federal Rule of Civil Procedure 4(j) states that

A state, a municipal corporation, or any other state-created

governmental organization that is subject to suit must be served by:

(A) delivering a copy of the summons and of the complaint to its

chief executive officer; or

(B) serving a copy of each in the manner prescribed by that

state’s law for serving a summons or like process on such a

defendant.

The New Jersey Court Rules provide that public bodies, other than the State of New Jersey itself,

are to be served by delivering “a copy of the summons and complaint in the manner prescribed by

paragraph (a)(1) of this rule on the presiding officer or on the clerk or secretary thereof.” N.J. Ct.

R. 4:4-4(a)(8). Here, Plaintiff served the New Jersey Judiciary by sending a copy of the summons

and complaint to the Honorable Glenn A. Grant, J.A.D., the Acting Administrative Director of the

New Jersey Courts, by certified mail and by leaving a copy of the summons and complaint with

Dawn Bronston, a “judiciary clerk” at the Hughes Justice Complex. (ECF No. 6, at 15; ECF 6-1,

at 19.) However, neither of these attempts effectuated proper service on the New Jersey Judiciary

as Plaintiff did not personally serve Judge Grant nor is there any indication the Bronston was

authorized to accept service on his behalf.

Accordingly, because Plaintiff failed to properly serve the State Defendants, the Court

vacates the default entered against them.6 See Anderson, 2013 WL 5703615, at *2. Because the

Court vacates the default against the State Defendants, Plaintiff’s Motion for Default Judgment is

denied as moot.

B. State Defendants’ Motion to Dismiss

The State Defendants additionally seek dismissal of Plaintiff’s Complaint with prejudice

for lack of subject matter jurisdiction under Rule 12(b)(1) and for failure to state a claim pursuant

to Rule 12(b)(6).

1. Lack of Subject Matter Jurisdiction

The State Defendants contend that this Court lacks subject matter jurisdiction over

Plaintiff’s claims against the New Jersey Judiciary and against the Individual State Defendants in

their official capacities based on Eleventh Amendment sovereign immunity and because they are

not “persons” under section 1983.7

6 Because default was improperly entered against the State Defendants, the Court need not

consider the factors for vacating default. See Anderson, 2013 WL 5703615, at *2 (“[A]n entry of

default may be set aside by the court without consideration of these factors if the default was

improperly entered.”). Nonetheless, even if the Court were to consider the factors, they would

weigh in favor of vacating the default entered against the State Defendants. First, Plaintiff has not

demonstrated that he would suffer any prejudice if default was vacated. Second, as set forth below,

the State Defendants have meritorious defenses to Plaintiff’s claims. And, finally, the State

Defendant’s failure to timely respond to the Complaint was not the result of culpable conduct but,

rather, was the result of Plaintiff’s failure to properly serve them.

7 The State Defendants, in a facial challenge to subject-matter jurisdiction, further contend

that the Court lacks subject-matter jurisdiction over Plaintiff’s Complaint pursuant to the Rooker-

Feldman doctrine. 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). “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). The Rooker-Feldman doctrine does not

apply to Plaintiff’s claims, however, because he is not seeking a review of the state court’s

State sovereign immunity under the Eleventh Amendment “is a jurisdictional bar which

deprives federal courts of subject matter jurisdiction.” Wright v. N.J. Dep’t of Educ., 115 F. Supp.

3d 490, 494 (D.N.J. 2015). 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. In other words, the Amendment afford states and

state agencies immunity from suits brought by citizens in federal court, regardless of whether legal

or equitable relief is sought. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100–

01 (1984); 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 . . . .”). This immunity extends to

state agencies and state officers acting in their official capacities who act on behalf of the state.

See Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997).

“judgment,” but rather seeks relief for injuries allegedly caused by the State Defendant’s conduct.

See Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 167 (3d Cir. 2010)

(“When, however, a federal plaintiff asserts injury caused by the defendant's actions and not by

the state-court judgment, Rooker-Feldman is not a bar to federal jurisdiction.”). Here, arguably,

the Rooker-Feldman doctrine could only apply to Plaintiff’s clams against Judge Kilgallen, Judge

Thornton, Judge Kondrup-Cohen, and McLaughlin, as those are only claims that directly relate to

the judgment of divorce. However, the Complaint alleges that these Defendants intentionally

discriminate against fathers in divorce and custody disputes in New Jersey’s family courts. (See

Compl. ¶¶ 67–70.) In that connection, Plaintiff claims that the Defendants intentionally deprived

him of his constitutional rights to equal protection and due process under the Fourteenth

Amendment by discriminating against him based on his sex and favoring Shah in their divorce

proceedings. (Id. ¶¶ 23–24, 32–33.) In Great Western, the Third Circuit found that the plaintiff’s

section 1983 claim, which alleged that his adversaries and state court judges conspired to “engineer

[plaintiff’s] defeat in state court,” was not barred by Rooker-Feldman, because the plaintiff

claimed that “‘people involved in the decision violated some independent right,’ that is, the right

to an impartial forum.” 615 F.3d at 171. Similarly here, Plaintiff alleges that his injuries were

caused by the State Defendants’ bias towards fathers in divorce proceedings. Accordingly,

Rooker-Feldman does not bar Plaintiff’s claims.

Here, the Eleventh Amendment bars Plaintiff’s claims against the New Jersey Judiciary

and his claims against the Individual State Defendants in their official capacities. It is well-

established that state courts and, by extension, judges and court employees, “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.’” Dongon v. Banar, 363 F. App’x 153,

156 (3d Cir. 2010); see also Robinson v. N.J. Mercer Cty. Vicinage-Family Div., 514 F. App’x

146, 149 (3d Cir. 2013) (affirming dismissal of claims against county court pursuant to Eleventh

Amendment sovereign immunity). Accordingly, the New Jersey Judiciary and the Individual State

Defendants, in their official capacities, are immune from suit under section 1983 pursuant to

Eleventh Amendment sovereign immunity.8

For these reasons, Plaintiff’s claims against the New Jersey Judiciary and the Individual

State Defendants, in their official capacities, are dismissed for lack of subject matter jurisdiction.9

8 Plaintiff contends that the State of New Jersey has waived its Eleventh Amendment

sovereign immunity by accepting federal funds under the Child Support Recovery Act of 1992

(“CSRA”), 18 U.S.C. § 228, and § 504 of the Rehabilitation Act, 29 U.S.C. § 794. It is well-

established that, under certain circumstances, “a state may surrender its immunity by accepting

federal funds conditioned on the state’s waiver of immunity, [but] mere acceptance of federal funds

does not cause a state to waive its immunity to suit.” A.W. v. Jersey City Public Schools, 341 F.3d

234, 239 (3d Cir. 2014). While acceptance of federal funds under the Rehabilitation Act does

require state agencies to waive sovereign immunity, that waiver applies only to claims for violation

of the Rehabilitation Act brought against that agency, i.e., claims for discrimination on the basis

of disability. See 29 U.S.C. § 794(a); see Chitester v. Dep’t of Child Protection & Permanency,

No. 17-12650, 2018 WL 6600099, at *5 (D.N.J. Dec. 17, 2018) (finding that state child protection

agency waived sovereign immunity for claims under the Rehabilitation Act). Plaintiff raises no

such claim in his Complaint. Neither did New Jersey waive sovereign immunity by accepting

funds under the CSRA as that statute does not require such waiver nor does Plaintiff’s Complaint

relate to the CSRA which sets forth criminal penalties for nonpayment of child support. See 18

U.S.C. § 228.

9 The State Defendants also raise the related argument that they are immune from liability

as they are not “persons” under section 1983. It is well-established that the state and state entities

are not “persons” for purposes of § 1983, and thus, are not amenable to suit under that statute. See

Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). The Court, however, declines to

2. Failure to State a Claim

a. Statute of Limitations

The State Defendants argue that certain of Plaintiff’s claims are barred by the statute of

limitations. The statute of limitations is an affirmative defense under Rule 8(c). However, in the

Third Circuit a limitations defense may be raised in a motion to dismiss pursuant to Rule 12(b)(6)

“only if the time alleged in the state of a claim shows that the cause of action has not been brought

within the statute of limitations.” Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014) (quoting

Robinson v. Johnson, 313 F.3d 128, 134–35 (3d Cir. 2002)). In other words, “[i]f the bar is not

apparent on the face of the complaint, then it may not afford the basis for a dismissal of the

complaint under Rule 12(b)(6).” Bethel v. Jendoco Constr. Corp., 570 F.2d 1168, 1174 (3d Cir.

1978).

Section 1983 has no statute of limitations of its own, but instead borrows the statute of

limitations from state personal injury torts. Wallace v. Kato, 549 U.S. 384, 387 (2007).

Accordingly, here, Plaintiff's claims pursuant to § 1983 are governed by New Jersey's personal

injury statute of limitations period, which dictates that the claim must be brought within two years

of its accrual. See Dique v. N.J. State Police, 603 F.3d 181, 185 (3d Cir. 2010). “Under federal

law, a cause of action accrues ‘when the plaintiff knew or should have known of the injury upon

which the action is based.’” Montanez v. Sec'y Pa. Dep't of Corr., 773 F.3d 472, 480 (3d Cir.

2014) (quoting Kach v. Hose, 589 F.3d 626, 634 (3d Cir. 2009)).

dismiss the claims against the State Defendants on this ground because while an individual acting

in his or her official capacity cannot be sued for monetary damages under 42 U.S.C. § 1983, he or

she can be sued under the statute for injunctive relief. See id. at 92. Because Plaintiff seeks both

monetary and injunctive relief in his Complaint, dismissal pursuant to Eleventh Amendment

sovereign immunity applies to both types of relief in this context.

Plaintiff’s claims against Judge Kilgallen, Judge Thornton, and McLaughlin, in their

individual capacities, are barred by the statute of limitations. Plaintiff alleges that Judge Kilgallen

presided over his 2007 divorce and two post-judgment proceedings: one in 2009 in which Plaintiff

objected to Shah taking their children to India for winter break and another in 2010 in which

Plaintiff sought to renegotiate the financial settlement as set forth in the MSA. (Compl. ¶¶ 101–

02.) Plaintiff claims that Judge Kilgallen, in presiding over these proceedings, deliberately

deprived Plaintiff of his equal visitation rights. Thus, Plaintiff knew or should have known of his

claims against Judge Kilgallen when the motions were denied. As the latest of Plaintiff’s claims

against Judge Kilgallen accrued in 2010, those claims are barred by the two-year limitations

period. So too are the claims against Judge Thornton. The only claim against Judge Thornton

relates to her dismissal of a 2010 motion to renegotiate the MSA filed by Plaintiff. This claim,

accordingly, also falls outside the limitations period. Finally, Plaintiff’s claim against

McLaughlin, a Family Counseling Specialist, is related her involvement in the mediation of

Plaintiff and Shah’s divorce in 2007. Again, this conduct falls outside the statute of limitations.

Nevertheless, Plaintiff contends that the statute of limitations does not bar his claims

because the discrimination against him has been “continuous.” (Compl. ¶ 121–22.) The Court

construes Plaintiff to argue that because he suffered ongoing injuries as a result of his judgment of

divorce and enforcement of the MSA, these orders constituted a continuing violation of his rights.

That argument, however, lacks merit. The continuing violations doctrine is an equitable exception

to the limitations period, which provides that, “when a defendant’s conduct is part of a continuing

practice, an action is timely so long as the last act evidencing the continuing practice falls within

the limitations period.” Cowell v. Palmer Twp., 263 F.3d 286, 292 (3d Cir. 2001) (quoting Brenner

v. Local 514, Unite Bhd. Of Carpenters & Joiners of Am., 927 F.2d 1283, 1295 (3d Cir. 1991)).

However, “[a] continuing violation is occasioned by continual unlawful acts, not continual ill

effects from an original violation.” Id. at 293 (quoting Ocean Acres Ltd. v. Care Cty. Bd. of Health,

707 F.3d 103, 106 (4th Cir. 1983)). For example, in Rose v. County of York, the Third Circuit

determined that the continuing violations doctrine did not apply where the plaintiff asserted a

custody order and its enforcement violated his civil rights. 262 F. App’x 485, 487 (3d Cir. 2008).

Rather, the Third Circuit held that plaintiff’s claims arose from the alleged ill effects of the original

order. Id. The same holds true here. The continuing violations asserted by Plaintiff are nothing

more than ill effects from the JOD and MSA, rather than continuing violations of his civil rights.

Accordingly, the claims against Judge Kilgallen, Judge Thornton, and McLaughlin are

dismissed with prejudice as barred by the statute of limitations.

b. Judicial Immunity

I will also grant the State Defendant’s motion to dismiss Plaintiff’s claims against Judge

Kondrup-Cohen, in her individual capacity, because she is entitled to absolute judicial immunity.

On the other hand, Chief Justice Rabner, Hopson, and Heilman are not immune based on judicial

and quasi-judicial immunity.

It is well-established “that judges are immune from suit under section 1983 for monetary

damages arising from their judicial acts.” Gallas v. Supreme Court of Pa., 211 F.3d 760, 768 (3d

Cir. 2000); see also Mireles v. Waco, 502 U.S. 9, 9 (1991) (“A long line of this Court’s precedents

acknowledges that, generally, a judge is immune from a suit for money damages.”). Following

the Supreme Court's guidance, the lower courts “must engage in a two-part inquiry to determine

whether judicial immunity is applicable.” Gallas, 211 F.3d at 768. “First, a judge is not immune

from liability for nonjudicial actions, i.e., actions not taken in the judge's judicial capacity.” Id.

(quoting Mireles, 502 U.S. at 11). “Second, a judge is not immune for actions, though judicial in

nature, taken in the complete absence of all jurisdiction.” Id. “With respect to the first inquiry,

‘the factors determining whether an act by a judge is a ‘judicial’ one relate 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.’” Id. at 768–69 (quoting

Stump v. Sparkman, 435 U.S. 349, 362 (1978)). The courts must “‘draw the line between truly

judicial acts, for which immunity is appropriate, and acts that simply happen to have been done by

judges,’ such as administrative acts.” Id. at 769 (quoting Forrester v. White, 484 U.S. 219, 227

(1988)).

“With respect to the second inquiry, [courts] must distinguish between acts in the “clear

absence of all jurisdiction,” which do not enjoy the protection of absolute immunity, and acts that

are merely in “excess of jurisdiction,” which do enjoy that protection. Id. at 769 (citing Stump,

435 U.S. at 356 n.6). “A judge will not be deprived of immunity because the action [he or she]

took was in error, was done maliciously, or was in excess of [his or her] authority; rather, [he or

she] will be subject to liability only when [he or she] has acted in the ‘clear absence of all

jurisdiction.’” Id. (quoting Stump, 435 U.S. at 356–57).

Plaintiff’s claim against Judge Kondrup-Coyle arises solely from her judicial conduct.

Plaintiff alleges that Judge Kondrup-Coyle, in denying his motion to enforce his parental rights in

November 2018, intentionally deprived him of his right to visitation with his son and “his equal

rights under the Fourteenth Amendment.” (Compl. ¶¶ 108–12.) Even taking as true Plaintiff’s

allegation that Judge Kondrup-Cohen deliberately deprived Plaintiff of his right to visitation with

his son, Plaintiff makes no allegation that Judge Kondrup-Cohen acted in “clear absence of all

jurisdiction.” Gallas, 211 F.3d at 768. Accordingly, Judge Kondrup-Cohen is entitled to judicial

immunity on Plaintiff’s claims against her.

Chief Justice Rabner, Heilman, and Hopson, however, are not entitled to judicial immunity.

Plaintiff’s claims against these Defendants do not arise form acts taken in a judicial or quasi-

judicial capacity. For judicial immunity to apply, a plaintiff’s claims must arise from actions taken

in the judge’s judicial capacity. Gallas, 211 F.3d at 768. To determine whether an act is judicial

in nature, a court must act “whether it is a function normally performed by a judge” and whether

the parties “dealt with the judge in his judicial capacity.” Id. at 768–69. It is critical to “draw the

line between truly judicial acts, for which immunity is appropriate, and acts that simply happen to

have been done by judges,’ such as administrative acts.” Id. at 769. Here, Plaintiff’s claim against

Chief Justice Rabner relates solely to his alleged inaction in response to Plaintiff’s complaints

regarding discrimination in New Jersey’s Family Courts. That inaction was not judicial in nature,

but rather a function of Chief Justice Rabner’s role as the head of the courts.

Court administrators and judiciary employees, like Heilman and Hopson, 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, however,

Plaintiff’s claims against Hopson and Heilman do not relate to conduct “integral to the judicial

process” or carrying out of a valid court order. Rather, Plaintiff’s claims against them, like his

claim against Chief Justice Rabner, relates solely to their administrative conduct, i.e., their

response to Plaintiff’s claims of alleged discrimination. Accordingly, Hopson and Heilman are

not entitled to quasi-judicial immunity, but the claims against them clearly lack merit.

c. Failure to State a Claim

Plaintiff brings claims against Chief Justice Rabner, Hopson, and Heilman under section

1983 for their “deliberate actions denying discrimination.”10

A plaintiff may have a cause of action under section 1983 for certain violations of

constitutional rights. That section specifically provides:

Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory or the District of

Columbia, subjects, or causes to be subjected, any citizen of the

United States or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in an action

at law, suit in equity, or other proper proceeding for redress, except

that in any action brought against a judicial officer for an act or

omission taken in such officer's judicial capacity, injunctive relief

shall not be granted unless a declaratory decree was violated or

declaratory relief was unavailable.

42 U.S.C. § 1983. To state a claim under § 1983, a plaintiff must allege the violation of a right

secured by the Constitution or laws of the United States and that the alleged deprivation was

committed or caused by a person acting under color of state law. See Harvey v. Plains Twp. Police

Dep’t, 635 F.3d 606, 609 (3d Cir. 2011); see also West v. Atkins, 487 U.S. 42, 48 (1988). Further,

10 The State Defendants additionally argue that, to the extent the Complaint may be construed

to assert claims against them for violations of Titles VI or VII of the Civil Rights Act of 1964,

those claims must be dismissed. Title VI provides that “[n]o person ... shall, on the ground of race,

color or national origin, be excluded from participation in, be denied the benefits of, or be subjected

to discrimination under any activity of program receiving Federal financial assistance.” 42 U.S.C.

§ 2000d. Plaintiff, however, does not allege that he was discriminated against, excluded from

participation in, or denied the benefits of any program or service, based on his race, color, or

national origin. Nor can Plaintiff proceed with a claim pursuant to Title VII, which prohibits

discriminatory employment practices based upon an individual’s “race, color, religion, sex, or

national origin.” Desert Palace, Inc. v. Costa, 539 U.S. 90, 92–93 (2003) (citing 42 U.S.C. §

2000e-2(a)(1)) . Plaintiff does not allege that he was ever employed by, or applied for employment

with, the New Jersey Judiciary in any capacity. Accordingly, both Titles VI and VII are

inapplicable to the allegations of Plaintiff’s Complaint, such that the Court construes the

Complaint to assert these claims.

“[a] defendant in a civil rights action must have personal involvement in the alleged wrongs to be

liable, and cannot be held responsible for a constitutional violation which he or she neither

participated in nor approved.” Baraka v. McGreevey, 481 F.3d 187, 210 (3d Cir. 2007) (internal

citations and quotations omitted).

Here, Plaintiff’s sole allegations against Chief Justice Rabner relate to a December 2018

letter that Plaintiff sent to Chief Justice Rabner complaining of “systemic discrimination against

fathers” in the Monmouth County Vicinage Family Court.11 (Compl. ¶ 19, 117–18.) Plaintiff

claims that Chief Justice Rabner “denied any role” in the alleged discrimination. (Id. ¶ 117.)

Distilling Plaintiff’s claim against Chief Justice Rabner to its essence, Plaintiff contends that Chief

Justice Rabner has failed to investigate and address allegations of discrimination against fathers in

New Jersey’s Family Courts. (See id. ¶¶ 117–18.) Even if these allegations could form a basis for

a section 1983 claim, Plaintiff fails to allege that Chief Justice Rabner’s inactions personally

caused Plaintiff’s injuries. See Baraka, 481 F.3d at 210. Plaintiff’s claim against Hopson fails for

the same reason. The only allegations against Hopson similarly relate to Hopson’s response to a

written complaint from Plaintiff regarding alleged discrimination against fathers. Plaintiff’s

11 To the extent the Complaint can be construed to assert a claim for supervisory liability

against Chief Justice Rabner, it similarly fails to state a claim. Generally, personal involvement

by the defendant in the alleged constitutional violation is central to a § 1983 claim, and liability

cannot rest on a theory of respondeat superior. See Chavarriaga v. N.J. Dep’t of Corr., 806 F.3d

210, 222 (3d Cir. 2015). Rather, there are two potential theories of supervisory liability under

section 1983: (1) defendants may be sued as policy makers “if it is shown that such defendants,

‘with deliberate indifference to the consequences, established and maintained a policy, custom, or

practice which directly caused [the] constitutional harm,’” A.M. ex rel. J.M.K. v. Luzerne Cty.

Juvenile Detention Ctr., 372 F.3d 572, 586 (3d Cir. 2004), or (2) a supervisor may be personally

liable under § 1983 if he or she “participated in violating the plaintiff's rights, directed others to

violate them, or, as the person in charge . . . , had knowledge of and acquiesced in his subordinates'

violations.” Baker v. Monroe Twp., 50 F.3d 1186, 1190–91 (3d Cir. 1995). The Complaint fails

to state a claim under either theory as it is devoid of any allegation that Chief Justice Rabner

implemented a policy of discriminating against fathers in divorce proceedings or had knowledge

of the alleged violation of Plaintiff’s constitutional rights and acquiesced in those violations.

contends that Hopson’s failure to address these issues violated the “Anti-Discrimination Policy of

the State of New Jersey.” (Compl. ¶¶ 114–15.) These allegations, however, fail to identify how

Hopson was personally involved in any violation of Plaintiff’s constitutional rights. As such,

Plaintiff cannot state a claim for relief against either Chief Justice Rabner or Hopson.

Plaintiff’s allegations against Heilman are equally deficient. Plaintiff alleges that Heilman,

an ombudsman in the Monmouth County Vicinage Family Court, was copied on the letter Plaintiff

sent to Hopson. (Compl. ¶ 126.) Plaintiff claims that Heilman, in response to his letter, called

him and “declared that there was no discrimination.” (Compl. ¶ 126.) Plaintiff speculates that the

purpose of the call “was to dissuade [him] from filing any appeal or seeking relief in [the] federal

courts.” (Id.) Again, Plaintiff’s allegations fail to identify how Heilman’s conduct violated his

constitutional rights or indicate how she was personally involved in any such violations.

Accordingly, the claims against her are dismissed for failure to state a claim.

3. Plaintiff’s Motion for Summary Judgment against Shah and Shah’s

Motion to Dismiss

Finally, the Court considers Plaintiff’s Motion for Summary Judgment against Shah.

Plaintiff contends that summary judgment on his claim against Shah is appropriate because there

is no dispute of material fact that Plaintiff was “arbitrarily denied equal protection under the law”

and that Shah conspired with the State Defendants to deny Plaintiff of his right to equal protection.

(See ECF No. 12, at 1.) While Shah did not file a response to Plaintiff’s motion for summary

judgment, the Court construes Shah’s response to the Complaint, filed in letter form, as a motion

to dismiss the claims against her. (See ECF No. 10, at 1 (requesting that the Complaint be

dismissed).)

Plaintiff has not demonstrated that he is entitled to judgment against Shah as a matter of

law. In the Complaint, Plaintiff alleges that Shah deprived him of his right to equal protection

under the Fourteenth Amendment by seeking primary custody of their children in the divorce

proceeding, in violation of section 1983. Plaintiff, however, cannot state a claim for relief against

Shah under section 1983, let alone demonstrate that he is entitled to judgment as a matter of law.

To state a claim under section 1983, a plaintiff “must establish that she was deprived of a federal

constitutional or statutory right by a state actor.” Kach, 589 F.3d at 646 (emphasis added). While

there are certain circumstances in which a private party may qualify as a state actor, i.e., if she

“conspires with a state official,” Walsh v. Walsh, 763 F. App’x 243, 246 (3d Cir. 2019), “merely

resorting to the courts and being on the winning side of a lawsuit does not make a party a co–

conspirator or a joint actor with the judge.” Dennis v. Sparks, 449 U.S. 24, 28 (1980). Here,

Plaintiff, in conclusory terms, claims that Shah “aided, abetted, and conspired” with the State

Defendants to violate his constitutional rights. However, Plaintiff fails to allege any facts that

would demonstrate that Shah, a private individual, conspired with any of the State Defendants.

Because Plaintiff has not shown that Shah is a state actor, he cannot proceed with a section 1983

claim against her. Accordingly, Plaintiff’s Motion for Summary Judgment against Shah is denied

and his claim against Shah dismissed.

IV. CONCLUSION

For the reasons set forth herein, Plaintiff’s Motion for Default Judgment against the State

Defendants is DENIED; the State Defendants’ Motion to Vacate Default is GRANTED; the State

Defendants’ Motion to Dismiss is GRANTED; Plaintiff’s Motion for Summary Judgment against

Shah is DENIED; and Shah’s Motion to Dismiss is GRANTED. Plaintiff’s Complaint is,

therefore, dismissed in its entirety.

DATED: December 9, 2020 /s/ Freda L. Wolfson

Freda L. Wolfson

U.S. Chief District Judge