# KENNY v. PORRINO

> District Court, D. New Jersey · April 29, 2021

URL: https://www.frixlaw.com/law-library/cases/10270644

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** April 29, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

FRANK J. KENNY, If],
Plaintiff, Civil Action No. 18-2729 (MAS) (LHG)
MEMORANDUM OPINION
CHRISTOPHER PORRINO, et al.,
Defendants.

SHIPP, District Judge
This matter comes before the Court upon Defendants United States Fish & Wildlife Service
(the “Service”) and Eric Schrading’s (collectively, “Federal Defendants”) Motion to Dismiss (ECF
No. 56) Plaintiff Frank J. Kenny, II's ¢*Plaintiff’) Third Amended Complaint (ECF No. 45).
Plaintiff responded by filing a Motion to Amend the Third Amended Complaint. (ECF No. 57.)
Federal Defendants opposed. (ECF No. 58.) The Court has carefully considered the parties”
submissions and decides the matter without oral argument pursuant to Local Civil Rule 78.1. For
the reasons set forth herein, Federal Defendants’ Motion to Dismiss is granted and Plaintiff's
Motion to Amend is denied.
BACKGROUND
Plaintiff proceeds pro se in this matter. In February 2018, Plaintiff filed a Complaint
against certain New Jersey state officials alleging that they improperly denied a request for public
records under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552; the New Jersey Open
Public Records Act (“OPRA”), N.J. Stat. Ann. §§ 47:1A-1 ef seq.; and the “Sunshine Law.”

(Compi. 2-3, ECF No. |.) The Court granted the state officials’ motion to dismiss the Complaint
without prejudice finding that “(i) FOIA does not apply to state agencies and officials and (ii)...
a dispute over an OPRA request does not give rise to a federal question.” Kenny v. Porrino, No.
18-2729, 2018 WL 4604314, at *2 (D.N.J. Sept. 25, 2018).
In October 2018, Plaintiff amended the Complaint to add, among others, the Service and
two of its employees, Eric Schrading and Jerry Markuson, as defendants. (Am. Compl. *1, ECF
No. 14 (*FAC”).)! The state officials again moved to dismiss, (ECF No. 20), and the Court granted
the motion, finding that the FAC “fail[ed] to cure the deficiencies the Court previously identified”
and “provid[ing] Plaintiff with one final opportunity to demonstrate that the Court has subject
matter jurisdiction over this matter.” (Order 2, ECF No. 27.)
In June 2019, Plaintiff filed a Second Amended Complaint (“SAC”), again naming various
New Jersey state officials as defendants, as well as Eric Schrading and Jerry Markuson, the federal
employees named in the FAC. (Second Am. Compl., ECF No. 28. (“SAC”).) Plaintiff did not name
the Service as a Defendant in the SAC, although he referenced the agency throughout. (See
generally id.) The docket for this matter contains no proof that Plaintiff served the SAC on the
Service or any federal employees pursuant to Rule 4(i). The state officials filed a motion to dismiss
the SAC, (ECF No. 33), and the Court granted that motion on the grounds that the Court lacked
subject matter jurisdiction. (ECF No. 43). Nevertheless, the Court granted Plaintiff leave to amend.
In that opinion, the Court took notice of the fact that Defendants Schrading and Markuson
were federal employees and had not been served. (/d. at 1 n.2.) The Court directed Plaintiff to file
proof of proper service or an explanation for why the civil action should not be djsmissed as to
Schrading and Markuson. (ECF No. 44.)

' Page numbers preceded by an asterisk refer to the page number on the ECF header.

On March 30, 2020, Plaintiff filed the Third Amended Complaint (*TAC”). The TAC
names the same Defendants named in the SAC, but it also adds the Service and the New Jersey
Department of Environmental Protection. (TAC *2, ECF No. 45.) Plaintiff brings claims under
FOIA and OPRA, as well as claims of civil rights violations, (/d.) On May 28, 2020, the state
agencies and officials named in the TAC moved to dismiss the action,” (ECF No. 48), and the
Court dismissed Plaintiff's claims against them for failure to serve timely and effective process
(ECF No, 69). Plaintiff filed various documents he represented to be proof of service of the TAC
on the Federal Defendants pursuant to Rule 4(i). (ECF Nos. 46, 47.) The United States Attorney's
Office then sent Plaintiff a letter asserting that he failed to properly serve the Service and other
federal officials as required under Rule 4(i) and requested that Plaintiff dismiss Markuson as a
Defendant. (ECF No. 51.) On August 14, 2020, Plaintiff again filed what he represents to be proof
of service as to the Federal Defendants. (ECF No. 52.) On August 24, 2020, Plaintiff formally
dismissed Markuson in a separate filing. (ECF No. 53.)
II. LEGAL STANDARD
A. Federal Rule of Civil Procedure 12(b)(1)
“When a defendant files a motion under Rule 12(b)(1), the plaintiff bears the burden of
establishing subject matter jurisdiction for the sake of remaining in federal court.” Wright v. New
Jersey, 115 F. Supp. 3d 490, 493 (D.N.J. 2015) (citing Gould Elecs., Inc. v. United States, 220
F.3d 169, 178 (3d Cir. 2000)). “A Rule 12(b)(1) motion may be treated as either a facial or factual
challenge to the court's subject matter jurisdiction.” Gould Efecs., 220 F.3d at 176. “Facial attacks

... contest the sufficiency of the pleadings, and the trial court must accept the complaint’s

> The moving state officials included: Christopher Porrino, New Jersey Office of the Attorney
General, Division of Consumer Affairs, Elizabeth J. Mackay, Michael J. Simon, Samuel R.
Viavattine, Daniel Santos, Eric Schrading, Jerry Markuson, State of New Jersey Department of
Environmental Protection, and Catherine R. McCabe. (ECF No. 48.)

allegations as true.” Taliaferro vy. Darby Twp. Zoning Bd., 458 F.3d 181, 188 (3d Cir, 2006). By
contrast, on a factual challenge to federal! subject matter jurisdiction, courts may consider evidence
outside the pleadings. Petruska v. Gannon Univ., 462 F.3d 294, 302 n.3 (3d Cir. 2006). Ona factual
challenge, “no presumptive truthfulness attaches to plaintiff's allegations, and the existence of
disputed material facts will not preclude the trial court from evaluating for itself the merits of
jurisdictional claims.” /@. The Third Circuit has cautioned that a Rule 12(b)(1) motion should not
be used as an attack on the merits. See CNA v. United States, 535 F.3d 132, 144 (3d Cir. 2008). “If
the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the
action.” See Fed. R. Civ. P. 12(h)(3).
B. Federal Rule of Civil Procedure 12(b)(6)
District courts undertake a three-part analysis when considering a motion to dismiss
pursuant to Rule 12(b)(6). Mfalleus v. George, 641 F.3d 560, 563 (3d Cir. 2011). “First, the court
must *tak[e] note of the elements a plaintiff must plead to state a claim.’” /d. (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 675 (2009)) (alteration in original). Second, the court must accept as true all
of the plaintiff's well-pled factual allegations and “construe the complaint in the light most
favorable to the plaintiff.’ Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)
(quotation omitted). In doing so, the court is free to ignore legal conclusions or factually
unsupported accusations that merely state, “the-defendant-unlawfully-harmed-me.” Iqbal, 556
U.S. at 678 (citing Bell Ad. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “[M]ere restatements
of the elements of [a] claim[] . . . are not entitled to the assumption of truth.” Burtch v. Milberg
Factors, Inc., 662 F.3d 212, 224 (3d Cir. 2011) (alterations in original} (quotation omitted).
Finally, the court must determine whether “the facts alleged in the complaint are sufficient to show
that the plaintiff has a *plausible claim for relief.” Fowler, 578 F.3d at 211 (quoting fgbal, 556

U.S. at 679). “The defendant bears the burden of showing that no claim has been presented.”
Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005) (citation omitted).
“Rule 12 prohibits the court from considering matters outside the pleadings in ruling on a
motion to dismiss for failure to state a claim... and a court’s consideration of matters outside the
pleadings converts the motion to a motion for summary judgment.” Kimbugwe v. United States,
No, 12-7940, 2014 WL 6667959, at *3 (D.N.J. Nov. 24, 2014). “[A]n exception to the general rule
is that a document integral to or explicitly relied upon in the complaint may be considered without
converting the motion to dismiss into one for summary judgment.” /n re Burlington Coat Factory
Secs. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997) (emphasis omitted) (internal quotation marks
omitted).
Rule “8(a)(2) requires only ‘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 (quoting Conley v. Gibson, 355 US.
41, 47 (1957)) (alteration in original). “[A]-pro se complaint, however inartfully pleaded, must be
held to less stringent standards than forma! pleadings drafted by lawyers ....” Erickson v. Pardus,
551 U.S. 89, 94 (2007) (citation omitted). Nonetheless, “a litigant is not absolved from complying
with Twombly and the federal pleading requirements merely because [he] proceeds pro se.” Thakar
v, Tan, 372 F. Appx 325, 328 (3d Cir. 2010) (citation omitted). Thus, “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) (citation omitted).
Ill. DISCUSSION
A. The Court’s Subject Matter Jurisdiction over This Matter
In the Motion now before the Court. Federal Defendants seek dismissal of Plaintiff's FOIA
and OPRA claims pursuant to Rule 12(b){1). Federal Defendants bring both a “facial” and a

“factual” challenge to the Court’s subject matter jurisdiction. They argue that Plaintiff has (1)
failed to allege withheld documents, (2) failed to exhaust administrative remedies, and (3) Federal
Defendants have sovereign immunity to Plaintiff's OPRA claims.
1. The TAC’s Allegations regarding Withheld Documents
The Federal Defendants argue that the Court lacks subject matter jurisdiction over
Plaintiff's FOIA claims because he has failed to allege that the Service withheld records responsive
to his requests. (Fed. Defs.” Moving Br. 9.) As the Federal Defendants correctly note, Congress
has set forth a narrow jurisdictional basis for review of FOIA claims: “[o]n complaint, the district
court of the United States... has jurisdiction to enjoin the agency from withholding agency records
and to order the production of any agency records improperly withheld[.]” 5 U.S.C. § 552(a)(4)(B);
see also Venkataram v. Office of Info. Policy, No. 09-6520, 2011 WL 2038735, at *2 (D.N.J. May
25, 2011) (“the Court's jurisdiction is limited to circumstances in which an agency has withheld
requested information”). “Plaintiffs who do not allege any improper withholding of agency records
fail to state a claim for which a court has jurisdiction under the FOIA.” Degenes v. FBI, No. 20-
2021 WL 130649, at *4 (W.D. Pa. Jan. 14, 2021) (quoting Goldgar v. Office of Admin., Exec.
Office of the President, 26 F.3d 32, 34 (Sth Cir. 1994) (citing Nat'l. Fed'n of Fed. Empl. v. United
States, 695 F, Supp. 1196, 1204 (D.D.C. 1988))). A plaintiff's “conclusory, unsupported allegation
that responsive records do exist, contrary to defendants’ response, does not trigger the court's
jurisdiction.” fa.
In conjunction with their Motion to Dismiss, Federal Defendants submit a declaration from
Elanor McVey, the FOIA coordinator for Regions | and 3 of the Service, which includes New
Jersey. (McVey Decl. 9 1, ECF No. 56-3.) McVey avers that the Service received three FOIA
requests from Plaintiff on or about March 22, 2018, October 26, 2018, and February 11, 2019. (dd.
5.) According to McVey, the Service “fully responded to each of those requests.” (/d.) With

respect to the March 2018 request, McVey maintains that “[t]he Service informed [Plaintiff] that
[it] was unable to process his request because the request did not adequately: (1) describe the
records sought, or (2) address the issue of fees.” (/d. J 9.) As to the October 2018 and February
2019 FOIA requests, McVey asserts that the Service released two responsive records to Plaintiff
in connection with each of these requests. (/d. {J 14, 17.)
The Federal Defendants argue that “Plaintiff references FOIA, but does not assert that the
Service withheld any records he sought.” (Fed. Defs.” Moving Br. 9.) On the contrary, however,
liberally construed, the TAC can be read as claiming that, among other things the Federal
Defendants “refused to dof,J” Federal Defendants did not “fp]Jrovide the [flollowing
[dJocuments[:] U.S.F.W.S. Environmental Assessment-Endangered Species with the F.E.M.A.
Programmatic Agreements between Defendants with the Primary Home 1821 Starboard Ct.” (TAC
| (emphasis in original).) Based on this allegation in the TAC, it appears that Plaintiff has asserted
that the Federal Defendants withheld specific records sought. Compare with Degenes, 2021 WL
130649, at *4 (““DeGenes does not contend that specific records were improperly withheld.”). Nor
do the Federal Defendants deny that the record or records referenced in the TAC exist. Compare
with id. (‘it is the agency’s burden to prove the non-existence of the records sought... .
[C]onclusory, unsupported allegation[s] that responsive records do exist, contrary to defendants”
response, does not trigger the court’s jurisdiction.). Accordingly, the Court will not dismiss
Plaintiff's claims for lack of subject matter jurisdiction on these grounds.
2. Plaintiff's Failure to Exhaust Administrative Remedies
The Court reaches a different conclusion, however, regarding the Federal Defendant's
second argument relating to subject matter Jurisdiction. Federal Defendants assert that Plaintiff has
never appealed any of his three FOIA requests. (Fed. Defs.” Moving Br. 11 (citing McVey Decl.
{ 18).) Accordingly, Federal! Defendants argue that the “failure to exhaust this administrative

appeal could constitute prudential grounds to dismiss for lack of subject matter jurisdiction[.]” (/d.
at 10.)
The Department of the Interior has established a process for appealing records request
denials by its “bureaus” or “major components,” including the Service. 43 C.F.R. § 2.70; see alse
Dep’t of Interior FOIA Contacts, http://www.doi.gov/foia/contacts (last accessed Apr. 15, 2021)
(listing Department of the Interior bureaus accepting FOIA requests, including the Service); 43
C.F.R, § 2.57; 43 C.F.R. § 2.58 (describing the timing for filing an appeal of the Service's decision
to withhold records or deny a records request).
The Third Circuit has held that “[t]he FOIA requires exhaustion of the administrative
appeals process before an individual may seek relief in the district court.” Conley v. FBI, 714 F.
App’x 191, 195 (3d Cir. 2017) (quoting MfcDonnell v. United States, 4 F.3d 1227, 1240 (3d Cir.
1993)). As the MfcDonnell court explained:
Exhaustion of administrative remedies is generally required before
filing suit in federal court so that the agency has an opportunity to
exercise its discretion and expertise on the matter and to make a
factual record to support its decision. Allowing a FOIA requester to
proceed immediately to court to challenge an agency's initial
response would cut off the agency’s power to correct or rethink
initial misjudgments or errors,
McDonnell, 4 F.3d at 1241 (internal quotations omitted). The McDonnell court also held, however,
that “[a] failure to exhaust administrative remedies does not per se deprive the court of subject
matter jurisdiction.” /d. at 1240 n.9. Rather. “[w]hether a requester has properly exhausted his
administrative remedies under the FOIA is a prudential consideration that the court takes into
account in determining whether to exercise subject matter jurisdiction.” Conley, 714 F. App’x at
194 (internal quotation omitted).
Here, the TAC fails to allege that Plaintiff exhausted his administrative remedies following
the Service's allegedly deficient FOIA responses. Moreover, the Federal Defendants submit

persuasive evidence that Plaintiff has never appealed any of his three FOTA requests. (See McVey
Deci. 4 19.) “For those reasons alone, plaintiff[’s] claim may be dismissed.” Surgick v. Cirella,
No. 09-3807, 2010 WL 2539418, at *4 (D.N.J. June 15, 2010) (dismissing a pro se complaint
where “plaintiffs neither explicitly set forth a cause of action under the FOIA nor did they allege
exhaustion of administrative remedies”); Schwartz v. DO./, 2007 WL 2916465, at *5 (D.N.J. Oct.
4, 2007) (“Plaintiff clearly failed to exhaust administrative remedies where it is not clear such
exhaustion would be futile. The Court finds that Plaintiff has not satisfied his burden of proving
that the Court has jurisdiction over his claims.”). Accordingly, the Court finds it lacks subject
matter jurisdiction over Plaintiff's FOIA claims.
3. Plaintiff's OPRA Claims
As the Federal Defendants argue, this Court lacks subject matter jurisdiction to consider
claims brought against them under OPRA, a New Jersey state law. As the Court has previously
held in this matter, “a dispute over an OPRA request does not give rise to a federal question.”
Kenny, 2018 WL 4604314, at *2. Additionally, the claims against the Federal Defendants are
barred by sovereign immunity. “Without a waiver of sovereign immunity, a court is without
subject matter jurisdiction over claims against federal agencies or officials in their official
capacities.” The Connelly Firm, P.C. v. U.S. Dep't of the Treasury, No. 15-2695, 2016 WL
1559299, at *3 (D.N.J. Apr. 18, 2016) (quoting Treasurer of New Jersey v. U.S. Dept. of Treasury,
684 F.3d 382, 395-96 (3d Cir. 2012)). Plaintiff cites no authority for the proposition that the United
States has waived sovereign immunity with respect to OPRA.
B. Federal Defendants’ Rule 12(b)(6) Arguments
The TAC’s claims against Federal Defendants must be dismissed for the reasons set forth
in Sections A.2 and A.3 above. Nevertheless, even if Plaintiff's claims survived that analysis and
the Court had subject matter jurisdiction, the Court would dismiss his claims.

The Court has previously dismissed Plaintiff's claims against other Defendants in this
action for failing to comply with Rule 8{a)’s notice pleading requirements. Kenny v. Porrino, No.
18-2729, 2020 WL 919703, at *3 (D.N.J. Feb. 26, 2020) (“the Court finds that Plaintiff fails to
provide State Defendants with fair notice of what the claim is and the grounds upon which it rests,
as required by Rule 8(a)(2)”).
The Court finds that Plaintiff's pleading has again failed to satisfy Rule 8(a)’s notice
pleading requirements. As the Federal Defendants note, the TAC’s caption names Schrading as a
Defendant, but the TAC does not explain his role in creating Plaintiff's cause of action. (See
generally TAC.) Additionally, Plaintiff confusingly refers to “the State” in a number of places. For
example, Plaintiff references “the State” and its FOIA determinations. (/d. at *2.} Such references
are especially confounding with regard to any takings or due process claims he might allege arose
from Federal Defendants’ violations of FOIA. (See, e.g., id. (“The State has failed and refuses to
provide the following documents which constitutes violation of FO/4 and OPRA which aids the
State in its continued efforts to deprive Plaintiff of his real property in violation of Federal and US
Constitutional Due Process Requirements.” (emphasis added)}.) Elsewhere, Plaintiff alleges that
“Defendants: impacted real property value, made matters complicated,” which arguably asserts a
regulatory taking. (/e.) See also Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 538 (2005). But as
Federal Defendants observe, it is not at all clear that this allegation pertains to Federal Defendants
as opposed to the now dismissed state officials and entities.
To the extent Plaintiff alleges constitutional violations against Federal Defendants, these
assertions are confused and he has failed to provide a short plain statement showing that he is
entitled to relief. On the whole, even when liberally construing the allegations in the TAC, the
Court finds that Plaintiff fails to provide the Federal Defendants with fair notice of his specific
claims against them. Cf El Mujaddid v. Brewer, 808 F. App’x 73, 76 (3d Cir. 2020) (holding that

10

a district court may “dismiss a complaint for failure to comply with Rule 8 when the complaint is
so confused, ambiguous, vague. or otherwise unintelligible that its true substance, if any, is well
disguised”).
In addition, FOIA’s grant of judicial review is limited to agency action in response to
records requested, not an agency employee's actions. 5 U.S.C. § 552(a)(4)(B). A “plaintiff may
not assert a FOIA claim against individual federal officials.” Venkataram, 2011 WL 2038735 at
*2 (quoting Stone v. Defense Investigative Serv., 816 F. Supp. 782, 785 (D.D.C.1993)). Therefore,
even if the Court found a FOIA claim against the Service, no such claim can be brought against
Schrading.
Cc, Plaintiff's Motion to Amend
In response to the Federal Defendants” Motion to Dismiss, Plaintiff filed a Motion to
Amend his pleading pursuant to Rule 15. (ECF No. 57.) The Motion seeks “to add supplemental
defendants” to this matter, and what appears to be new claims relating to a “new FOIA dated Oct.
5, 2020.” (Ud. at 2.)
A district court may deny a plaintiff leave to amend a pleading “based on bad faith or
dilatory motives, . . . repeated failures to cure the deficiency by amendments previously allowed,
or futility of amendment.” Lorenz v. CSX Corp., | F.3d 1406, 1414 (3d Cir. 1993). “Futility means
that the complaint, as amended, would fail to state a claim upon which relief could be granted.” Jn
re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997). “Amendment of the
complaint is futile if the amendment will not cure the deficiency in the original complaint or if the
amended complaint cannot withstand a renewed motion to dismiss.” Jablonski v. Pan Am. World
Airways, Inc., 863 F.2d 289, 292 (3d Cir. 1988) (citing Massarsky v. General Motors Corp., 706
F.2d 111, 125 (3d Cir. 1983)).

1}

Plaintiff's proposed amendments do not address the deficiencies discussed in this
Memorandum Opinion. Furthermore, the Court has granted Plaintiff multiple opportunities to
amend deficiencies in his pleadings throughout this action. Accordingly, the Court denies
Plaintiff's Motion to Amend as futile.
IV. CONCLUSION
For the reasons set forth above, Defendant's Motion to Dismiss is granted. The Court will
enter an Order consistent with this Memorandum Opinion.

jodhp 0
MICHAEL A. SHIPP
UNITED STATES DISTRICT JUDGE

|2

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10270644. Public record. Not legal advice.