WOLF v. WOLF

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

WALTER WOLF,

Plaintiff,

v.

Case No. 2:20-cv-14576 (BRM) (JSA)

KAREN WOLF, et al.,

Defendants. OPINION

MARTINOTTI, DISTRICT JUDGE

Before this Court are: (1) a Motion to Dismiss filed by defendant Karen Wolf (“Ms. Wolf“)

seeking to dismiss Plaintiff Walter Wolf’s (“Mr. Wolf”) Complaint pursuant to Federal Rule of

Civil Procedure 12(b)(6) (ECF No. 26), and (2) a Motion for Judgment on the Pleadings filed by

defendants Michael Mazzeo (“Mazzeo”), Ryan Sokera (“Sokera”), Robert Hoffman (“Hoffman”),

and the Borough of Emerson (“Emerson”) (collectively, “Borough Defendants,” and together with

Ms. Wolf, “Defendants”) (ECF No. 27). Mr. Wolf opposed the motions. (ECF Nos. 28, 29.)

Defendants replied. (ECF Nos. 30, 31.) Having reviewed the submissions filed in connection with

the motions and having declined to hold oral argument pursuant to Federal Rule of Civil Procedure

78(b), for the reasons set forth below and for good cause appearing, Defendants’ motions are

GRANTED.

I. BACKGROUND

Emerson is a municipality in Bergen County, New Jersey. (ECF No. 1 ¶ 11.) Ms. Wolf was

a member of the town council for Emerson and was seeking reelection in September 2018. (Id. ¶

16.) During that time, Ms. Wolf and Mr. Wolf were in the process of divorcing. (Id. ¶ 27.) During

this time, Mr. Wolf posted flyers adverse to Ms. Wolf in multiple locations in Emerson, portraying

Ms. Wolf as being unfaithful to her marriage and containing other derogatory statements about

her. (Id. ¶ 17; ECF No. 27-1 at 3.) Mr. Wolf also sent the flyers to individuals in Emerson and

posted negative information about Ms. Wolf on social media.1 (ECF No. 1 ¶ 20; ECF No. 26-1 at

7.) Mr. Wolf claims what he did constitutes an exercise of his First Amendment rights of speech

and association aimed to prevent Ms. Wolf’s reelection. (ECF No. 1 ¶¶ 19–20.)

On September 19, 2018, Hoffman, who was Emerson’s town administrator, became aware

of the flyers posted by Mr. Wolf and contacted Emerson’s police department to conduct an

investigation. (Id. ¶ 21.) Mazzeo, who was Emerson’s chief of police, ordered an investigation into

the flyers. (Id. ¶ 23.) Sokera, a detective at Emerson’s police department, conducted the

investigation. (Id. ¶¶ 9, 24.) During the investigation, Ms. Wolf met with Sokera, gave him

screenshots from Mr. Wolf’s Facebook page, and indicated her belief that Mr. Wolf posted the

flyers. (Id. ¶ 26.)

On October 19, 2018, an arrest warrant for Mr. Wolf was prepared based on Sokera’s

affidavit (id. ¶¶ 33–34), and an assistant prosecutor from the Bergen County Prosecutor’s Office

approved charges against Mr. Wolf for harassment under N.J. Stat. Ann. § 2C:33-4(a) and cyber

harassment under N.J. Stat. Ann. § 2C:33-4.1(a)(2). (ECF No. 26-1 at 7; ECF No. 26-5 at 33.) On

October 20, 2018, Mr. Wolf was arrested and imprisoned for two days. (ECF No. 1 ¶ 34; ECF No.

26-1 at 7.) On October 22, 2018, Mr. Wolf was released from jail on the condition he wore an

electronic monitoring bracelet, which was later removed on the condition that Mr. Wolf forfeithis

gun collection to the authorities. (ECF No. 1 ¶ 36.)

1 Hereinafter, Mr. Wolf’s activities of disseminating derogative information of KW in flyers,

letters and social media postings are referred to as the “Dissemination Activities.”

On November 7, 2018, the Superior Court of New Jersey, Bergen County, Chancery

Division, Family Part entered a consent and restraining order (the “Divorce Consent Order”) in a

divorce proceeding between Ms. Wolf and Mr. Wolf (the “Divorce Proceeding”). (ECF No. 26-

2.) The Divorce Consent Order restrained the parties “from creating, forwarding, posting or

commenting on/to any information about the other party on social media” and “any similar type

activity that is outside of social media including physical printouts/handouts, flyers, newspaper,

commentary, etc.” (Id. ¶ 6.) By the terms of the Divorce Consent Order, Ms. Wolf and Mr. Wolf

acknowledged their voluntary agreement to be bound by its conditions and recognized each had

the opportunity to obtain the advice of counsel. (Id. ¶¶ 9–10.) In addition, the Divorce Consent

Order included a provision obligating Ms. Wolf to inform the Bergen County Prosecutor’s Office

that she would not press charges against Mr. Wolf for his alleged cyber-stalking. (Id. ¶ 7.)

Mr. Wolf alleges, on November 12, 2018, the River Edge municipal court found in a

hearing entertaining Plaintiff’s harassment and cyberstalking charges that Plaintiff’s

Dissemination Activities were protected by the First Amendment and dismissed the charges

against Mr. Wolf (the “Municipal Proceeding”). (ECF No. 1 ¶ 37.)

From August 2020 to October 2020, the Superior Court of New Jersey, Bergen County,

Chancery Division, Family Part held a four-day proceeding regarding Mr. Wolf’s qualification to

possess firearms (the “Forfeiture Proceeding”), in which the State of New Jersey and Mr. Wolf

were opposing parties. (ECF Nos. 26-4, 26-5, 26-6, 26-7.) In the Forfeiture Proceeding, Ms. Wolf

testified for the State of New Jersey regarding the Dissemination Activities. (ECF No 26-1 at 9;

ECF No. 26-4 at 9, 13–14.) Judge Janeczko, who presided over the proceeding, found the

Dissemination Activities amounted to “harassment” and “a smear campaign” and rejected the

argument of Mr. Wolf’s legal counsel that the Dissemination Activities constituted an exercise of

Mr. Wolf’s constitutional rights. (ECF No. 26-1 at 10, 13; ECF No. 26-4 at 37–38; ECF No. 26-7

at 12.) Judge Janeczko further found Mr. Wolf “pose[d] a danger to the general public” and “giving

weapons back to [Mr. Wolf] would in fact be an invitation to tragedy.” (ECF No. 26-7 at 19.)

Judge Janeczko ordered forfeiture of Mr. Wolf’s firearms (the “Forfeiture Order”). (Id.)

Mr. Wolf appealed the Forfeiture Order and, on October 6, 2021, the Appellate Division

of New Jersey affirmed. (ECF No. 36-1.) The Appellate Division noted Judge Janeczko concluded

Mr. Wolf lacked the “sound judgment” to possess the firearms based on six reasons:

(1) the posting of disparaging flyers throughout the municipality

on two separate dates; (2) sending letters accusing Ms. Wolf of

infidelity just before her re-election effort; (3) arguing with his

son on the front lawn of the home, causing a patrolling police

officer to investigate; (4) ripping a bathroom door off the hinges;

(5) tossing an iPad over his shoulder and striking Ms. Wolf on the

nose; and (6) self-reporting an incident of driving while

intoxicated.

(Id. at 9.) The Appellate Division stated it was “satisfied the State met its burden of proving

by a preponderance of the evidence that the forfeiture of Mr. Wolf’s firearms and [Firearms

Purchaser Identification Card] was warranted.” (Id. at 12.)

On October 16, 2020, Mr. Wolf filed a Complaint in this Court alleging Defendants

“retaliate[ed] against [him] for engaging in speech and association which was protected under the

First Amendment” and asserting claims under: (1) 42 U.S.C. § 1983 against Borough Defendants

and Ms. Wolf for their alleged retaliation against Mr. Wolf for his exercise of First Amendment

rights (Count I); (2) 42 U.S.C. § 1983 against Emerson for its alleged policies and customs that

caused deprivation of Mr. Wolf’s First Amendment rights (Count 2); (3) New Jersey Civil Rights

Act (“NJCRA”) against all Defendants for their alleged retaliation against Mr. Wolf for his

exercise of New Jersey Constitutional rights (Count 3); (4) 42 U.S.C. § 1983 against all Defendants

for malicious prosecution in violation of Mr. Wolf’s Fourth, Fifth and Fourteenth Amendment

rights (Count 4); (5) 42 U.S.C. § 1983 against all Defendants for abuse of process in violation of

Mr. Wolf’s Fourth, Fifth and Fourteenth Amendment rights (Count 5); 2 (6) 42 U.S.C. § 1983

against all Defendants for false arrest in violation of Mr. Wolf’s Fourth, Fifth and Fourteenth

Amendment rights (Count 6); (7) 42 U.S.C. § 1983 against all Defendants for false imprisonment

in violation of Mr. Wolf’s Fourth, Fifth and Fourteenth Amendment rights (Count 7); and (8) 42

U.S.C. § 1985 against all Defendants for conspiracy to violate civil rights in violation of Mr.

Wolf’s Fourth, Fifth and Fourteenth Amendment rights (Count 8). (ECF No. 1.) On May 18, 2021,

Ms. Wolf filed a Motion to Dismiss (ECF No. 26), and the Borough Defendants filed a Motion for

Judgment on the Pleadings (ECF No. 27). Mr. Wolf opposed Defendants’ motions. (ECF Nos. 28,

29.) Defendants replied. (ECF Nos. 30, 31.)

II. LEGAL STANDARD

Federal Rule of Civil Procedure 12(c) provides: “After the pleadings are closed - but early

enough not to delay trial - a party may move for judgment on the pleadings.” Fed. R. Civ. P. 12(c).

Pursuant to Rule 12(c), the movant for judgment on the pleadings must establish: (1) that no

material issue of fact remains to be resolved; and (2) the entitlement to judgment as a matter of

law. See Rosenau v. Unifund Corp., 539 F.3d 218, 221 (3d Cir. 2008) (citing Jablonski v. Pan Am.

World Airways, Inc., 863 F.2d 289, 290-91 (3d Cir. 1988). In resolving a motion made pursuant to

2 Mr. Wolf asserts Count V as a combined claim for malicious use of process (also known as

malicious prosecution) and abuse of process under § 1983. Because Mr. Wolf already asserts a

malicious prosecution claim under § 1983 in Count IV, the same cannot be duplicatively alleged

in Count V. Therefore, the Court construes Count V solely as an abuse of process claim under §

1983. See Burgess v. Bennet, Civ. A. No. 20-7103, 2021 U.S. Dist. LEXIS 52042, at *21 n.10

(D.N.J. Mar. 19, 2021) (“Malicious use of process and malicious prosecution are, in essence the

same tort and distinct from malicious abuse of process.” (citations omitted)); see also Gebhart v.

Steffen, 574 F. App’x 156, 159–60 (3d Cir. 2014) (“Abuse of process and malicious use of process,

also known as malicious prosecution, are separate torts.” (citing Rose v. Bartle, 871 F.2d 331, 350

n.17 (3d Cir. 1989))).

Rule 12(c), the Court must view the facts in the pleadings and the inferences therefrom in the light

most favorable to the non-movant. See Rosenau, 539 F.3d at 221.

A motion for judgment on the pleadings, like a motion to dismiss, will be granted if the

plaintiff has not articulated enough facts to “raise a right to relief above the speculative level.” See

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007); See

also Szczurek v. Prof'l Mgmt. Inc., 627 F. App’x 57, 60 (3d Cir. 2015) (citing Revell v. Port Auth.

of N.Y. & N.J., 598 F.3d 128, 134 (3d Cir. 2010)); see also Muhammad v. Sarkos, 2014 WL

4418059 (D.N.J. Sept. 8, 2014) (“Where a defendant's motion is one for judgment on the pleadings

pursuant to Federal Rule of Civil Procedure 12(c), it is treated under the same standards as a Rule

12(b)(6) motion where it alleges that a plaintiff has failed to state a claim.”) (citing Turbe v. Gov't

of V.I., 938 F.2d 427, 428 (3d Cir. 1991); Gebhart v. Steffen, 574 F. App’x 156, 157 (3d Cir.

2014)).

“[A] complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual

allegations.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted).

However, the plaintiff’s “obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires

more than labels and conclusions, and a formulaic recitation of the elements of a cause of action.”

Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). A court is “not bound to accept as true a

legal conclusion couched as a factual allegation.” Papasan, 478 U.S. at 286 (citations omitted).

Instead, assuming the factual allegations in the complaint are true, those “[f]actual allegations must

be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (citing

5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp 235–36 (3d ed. 2004)).

For the purposes of the motion to dismiss, the Court “accept[s] as true all factual allegations

in the complaint and draw[s] all inferences from the facts alleged in the light most favorable to

[the plaintiff].” Phillips v. Cty. of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008) (citing Worldcom,

Inc. v. Graphnet, Inc., 343 F.3d 651, 653 (3d Cir. 2003)). The Court also considers any “document

integral to or explicitly relied upon in the complaint.” In re Burlington Coat Factory Secs. Litig.,

114 F.3d 1410, 1426 (3d Cir. 1997) (citing Shaw v. Dig. Equip. Corp., 82 F.3d 1194, 1220 (1st

Cir. 1996)).

“To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when

the pleaded factual content allows the court to draw the reasonable inference that the defendant is

liable for misconduct alleged.” Id. This “plausibility standard” requires the complaint to allege

“more than a sheer possibility that a defendant has acted unlawfully,” but it “is not akin to a

probability requirement.” Id. (quoting Twombly, 550 U.S. at 556). “Detailed factual allegations”

are not required, but “more than an unadorned, the defendant-unlawfully-harmed-me accusation”

must be pled; it must include “further factual enhancement” and not just conclusory statements or

a recitation of the elements of a cause of action. Id. (citing Twombly, 550 U.S. at 555, 557).

“Determining whether a complaint states a plausible claim for relief [is] . . . a context-

specific task that requires the reviewing court to draw on its judicial experience and common

sense.” Id. at 679. “[W]here the well-pleaded facts do not permit the court to infer more than the

mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the

pleader is entitled to relief.’” Id. (quoting Fed. R. Civ. P. 8(a)(2)). However, courts are “not

compelled to accept ‘unsupported conclusions and unwarranted inferences,’” Baraka v.

McGreevey, 481 F.3d 187, 195 (3d Cir. 2007) (quoting Schuylkill Energy Res. Inc. v. Pa. Power

& Light Co., 113 F.3d 405, 417 (3d Cir. 1997)), nor “a legal conclusion couched as a factual

allegation.” Papasan, 478 U.S. at 286 (citations omitted).

While, as a general rule, the court may not consider anything beyond the four corners of

the complaint on a motion to dismiss pursuant to Rule 12(b)(6), the Third Circuit has held that “a

court may consider certain narrowly defined types of material without converting the motion to

dismiss to a summary judgment motion, including items that are integral to or explicitly relied

upon in the complaint.” Coulter v. Doerr, 486 F. App’x 227, 228 (3d Cir. 2012) (citing In re

Rockefeller Ctr. Props. Sec. Litig., 184 F.3d 280, 287 (3d Cir. 1999)).

III. DECISION

A. Mr. Wolf’s Claims Against Ms. Wolf (Counts 1, 3–8)

Mr. Wolf includes Ms. Wolf in all of his claims, pleading Ms. Wolf violated Mr. Wolf’s

civil rights. (ECF No. 1.) Mr. Wolf’s allegation that Ms. Wolf misused the state legal process alone

cannot hold Ms. Wolf, a private party, liable under federal civil rights laws. Benn v. Universal

Health System, Inc., 371 F.3d 165, 172 (3d Cir. 2004) (“[P]rivate misuse of a state statute does not

describe conduct that can be attributed to the State.”); Lugar v. Edmondson Oil Co., 457 U.S. 922,

950, 951 (1982) (holding private actors may be liable under § 1983 when the action is fairly

attributable to the State). Therefore, Ms. Wolf’s motion to dismiss Mr. Wolf’s claims against her

is GRANTED, and these claims against Ms. Wolf are DISMISSED.

B. Mr. Wolf’s Claims Against Borough Defendants

1. First Amendment Retaliation Claims (Counts 1, 2, 3)

To plead constitutional retaliation claims, the claimant must prove “(1) that he engaged in

constitutionally-protected activity; (2) that the government responded with retaliation; and (3) that

the protected activity caused the retaliation.” Eichenlaub v. Twp. of Indiana, 385 F.3d 274, 282

(3d Cir. 2004) (citations omitted). Here, Mr. Wolf asserts no constitutionally protected activities

other than the Dissemination Activities. Judge Janeczko already found in the Forfeiture Proceeding

that the Dissemination Activities were not constitutionally protected. The parties dispute whether

this Court should adopt Judge Janeczko’s finding, which would bar Mr. Wolf’s § 1983 retaliation

claims. Resolution of this dispute, therefore, turns on the question of collateral estoppel, and New

Jersey preclusion rules apply. See Paramount Aviation Corp. v. Agusta, 178 F.3d 132, 135 (3d Cir.

1999). New Jersey courts apply a five-pronged test to determine whether collateral estoppel should

bar relitigation of an issue.

(1) the issue must be identical; (2) the issue must have actually been

litigated in a prior proceeding; (3) the prior court must have issued

a final judgment on the merits; (4) the determination of the issue

must have been essential to the prior judgment; and (5) the party

against whom collateral estoppel is asserted must have been a party

or in privity with a party to the earlier proceeding.

Del. River Port Auth. v. FOP, Penn-Jersey Lodge 30, 290 F.3d 567, 573 (3d Cir. 2002) (citing In

re Estate of Dawson, 641 A.2d 1026, 1034–35 (N.J. 1994)).

Regarding the first prong, Judge Janeczko found the Dissemination Activities did not

qualify as an exercise of Mr. Wolf’s constitutional rights. See Part III.B.2.a, supra. In other words,

the identical issue was decided in the Forfeiture Proceeding.

As to the second prong, Mr. Wolf argued in the Forfeiture Proceeding his actions

constituted an exercise of his constitutional rights, and the argument was rejected by Judge

Janeczko. See Part III.B.2.a, supra. Therefore, the identical issue was actually litigated in the

Forfeiture Proceeding.

The third prong is met because Judge Janeczko’s finding that Mr. Wolf’s Dissemination

Activities were not protected by the First Amendment is a final judgment on the merits for purposes

of collateral estoppel. “[F]or purposes of issue preclusion . . . ‘final judgment’ includes any prior

adjudication of an issue in another action that is determined to be sufficiently firm to be accorded

conclusive effect.” In re Docteroff, 133 F.3d 210, 216 (3d Cir. 1997) (quoting Restatement

(Second) of Judgments § 13 (1982)). “In determining whether the resolution was sufficiently firm,

the second court should consider whether the parties were fully heard, whether a reasoned opinion

was filed, and whether that decision could have been, or actually was, appealed.” In re Brown, 951

F.2d 564, 569 (3d Cir. 1991). “The ability to appeal is only one factor to be considered and is not

outcome determinative for the purposes of collateral estoppel.” In re LoGiudice, Civ. A. No. 13-

2612, 2013 U.S. Dist. LEXIS 175184, at *15 (D.N.J. Dec. 12, 2013) (citations omitted).

During the four-day hearing before Judge Janeczko, Mr. Wolf, through his counsel, twice

argued the Dissemination Activities were constitutionally protected. (ECF No. 26-4 at 36; ECF

No. 26-7 at 12.) Also, Mr. Wolf, Ms. Wolf, and several police officers testified as to the

Dissemination Activities, and Judge Janeczko conducted a thorough analysis of their testimonies

and credibility. (See ECF No. 26-7 at 8–18.) In particular, the State called Ms. Wolf, Sokera, and

Hoffman as witnesses who considered the Dissemination Activities “a concern.” (Id. at 9–12.)

After having heard and analyzed these proofs, Judge Janeczko “found the testimony of the police

officers and [Ms. Wolf] to be credible” and “the testimony of [Mr. Wolf] not to be credible.” (Id. at

18.) Moreover, Judge Janeczko admitted into evidence: (1) police reports and photos that depicted

the Dissemination Activities, and (2) the actual flyers and envelopes used in the Dissemination

Activities.3 After considering this evidence (ECF No. 26-5 at 21), Judge Janeczko determined the

Dissemination Activities “[went] beyond exercising constitutional rights” and amounted to “a

smear campaign.” (ECF No. 26-7 at 12.)

3 These documents and physical objects were referred to as Exhibits S-1, S-6, S-8, S-9, S-10, and

S-12 in the Forfeiture Proceeding. (ECF No. 26-5 at 2.)

Therefore, the Court finds the parties were fully heard on the First Amendment inquiry into

the Dissemination Activities, on which Judge Janeczko reached a reasoned determination. In

addition, “other factors weigh more heavily in favor of finality.” LoGiudice, 2013 U.S. Dist.

LEXIS 175184, at *17–18 (upholding the collateral estoppel effect of a prior state court

determination because: (1) “[t]he parties were represented by counsel and an extensive discovery

was conducted;” (2) “the parties had the opportunity to testify and present evidence at a trial before

the [s]tate [c]ourt;” (3) “the [s]tate [c]ourt heard testimony from the relevant witnesses and made

credibility determinations accordingly;” and (4) “[a]t the end of the trial, the [s]tate [c]ourt issued

a clear and reasoned [l]etter [o]pinion which represented that court’s judgment on the issues”).

The fourth prong is satisfied because Judge Janeczko’s determination that Mr. Wolf’s

Dissemination Activities were not protected by the First Amendment was essential for the Judge

to issue a forfeiture order. See Copeland v. United States DOJ, Civ. A. No. 15-7431, 2015 U.S.

Dist. LEXIS 170004, at *8 (D.N.J. Dec. 21, 2015) (describing the fourth prong as requiring the

issue in question to be essential to the final judgment referred to in the third prong (citing Peloro

v. United States, 488 F.3d 163, 175 (3d Cir. 2007))).

The fifth prong is met because the party against whom collateral estoppel is asserted is Mr.

Wolf, who was a party in the Forfeiture Proceeding.

As a result, the five-pronged test for collateral estoppel is satisfied. In addition, New Jersey

appellate division’s decision affirming Judge Janeczko’s findings (ECF No. 36-1) further compels

the Court to apply collateral estoppel. See Gregory Mktg. Corp. v. Wakefern Food Corp., 504 A.2d

828, 837 (N.J. Super. Ct. Law. Div. 1985) (recognizing collateral estoppel applies even pending

an appeal); see also Davis v. U.S. Steel Supply, Div. of U.S. Steel Corp., 688 F.2d 166, 174 (3d

Cir. 1982) (recognizing collateral estoppel applies even when the party was unable to invoke that

legal theory in the previous proceeding).

The Court next turns to the question of fairness. See Mann v. Estate of Meyers, 61 F. Supp.

3d 508, 522 (D.N.J. 2014); see also In re Liquidation of Integrity Ins. Co., 67 A.3d 587, 596 (N.J.

2013). The trial court has “broad discretion to determine when [collateral estoppel] should be

applied.” Parklane Hosiery Co. v. Shore, 439 U.S. 322, 651 (1979). The Court finds that, in the

Forfeiture Proceeding, both Mr. Wolf and his legal counsel voiced their positions on the

Dissemination Activities and confronted the witnesses, evidence, and arguments offered by the

State of New Jersey. Therefore, Mr. Wolf had a full and fair opportunity to litigate the

constitutionality issue of the Dissemination Activities in the Forfeiture Proceeding. See Parklane

Hosiery, 439 U.S. at 332, 333 (finding the non-moving party to have had a full and fair opportunity

to litigate where, in the previous proceeding, he had “every incentive to litigate . . . fully and

vigorously” and had enjoyed all the “procedural opportunities” that would be available to him in

the second proceeding).

Because the five-pronged test is met and fairness favors applying collateral estoppel, the

Court finds Judge Janeczko’s determination on the constitutionality of the Dissemination

Activities has preclusive effect. This issue cannot be relitigated here. 4 Accordingly, the

4 The Court is not persuaded by other preclusion theories. Judicial estoppel “bar[s] a party to a

legal proceeding from arguing a position inconsistent with one previously asserted.” State v.

Gonzalez, 667 A.2d 684, 691 (N.J. 1995) (citations omitted). Mr. Wolf is not asserting a position

inconsistent with the Divorce Order by arguing the Dissemination Activities were protected by the

First Amendment, which was entered after the Dissemination Activities started to occur. Even if

the Divorce Order prohibits Mr. Wolf from conducting similar activities in the future, it does not

hold the Dissemination Activities could not be an exercise of Mr. Wolf’s First Amendment rights.

See Palcsesz v. Midland Mut. Life Ins. Co., 87 F. Supp. 2d 409, 412 (D.N.J. 2000) (explaining test

for judicial estoppel). As for Rooker-Feldman doctrine, Mr. Wolf’s alleged injuries, including the

charges brought against him and the two-day imprisonment, occurred before the completion of the

Divorce Proceeding. Nothing in the Divorce Order can be interpreted as facilitative of such

injuries. On the contrary, in the Divorce Order, Mr. Wolf agreed not to press charges against Mr.

Wolf. As for the Forfeiture Proceeding, it occurred after issuance of the Divorce Order and

Defendants’ Motion for Judgment on the Pleadings as to Counts 1 and 2 is GRANTED, and

Counts 1 and 2 are DISMISSED.

The dismissal of Counts 1 and 2 affects the viability of Mr. Wolf’s NJCRA claim (Count

3), as well. “The NJCRA was modeled after § 1983, and courts in New Jersey have consistently

looked at claims under the NJCRA through the lens of § 1983[,] thereby construing the NJCRA in

terms similar to its federal counterpart.” Wronko v. Howell Twp., Civ. A. No. 17-1956, 2018 U.S.

Dist. LEXIS 10577, at *15–16 (D.N.J. Jan. 23, 2018) (citations omitted). New Jersey courts

“ha[ve] repeatedly interpreted the NJCRA analogously to § 1983.” Id. (citations omitted).

Therefore, “to the extent that certain theories of [p]laintiff’s § 1983 claims were dismissed,

[p]laintiff’s NJCRA claim was also dismissed on those grounds, and to the extent that the [c]ourt

determined that [p]laintiff stated a claim as to other § 1983 theories, [p]laintiff also stated a claim

under the NJCRA.” Rapeika v. Borough of Fort Lee, Civ. A. No. 19-6612, 2020 U.S. Dist. LEXIS

203539, at *4 n.3 (D.N.J. Oct. 30, 2020). In other words, “all claims under NJCRA are treated the

same as the comparable § 1983 claims.” Jackson v. Hamilton Twp., Civ. A. No. 10-3989, 2014

U.S. Dist. LEXIS 39310, at *17 (D.N.J. Mar. 24, 2014). Mr. Wolf’s NJCRA claim is based on

Defendants’ alleged retaliation. Therefore, Defendants’ Motion for Judgment on the Pleadings as

to Count 2 is GRANTED, and Count 2 is DISMISSED.

therefore could not have caused Mr. Wolf’s alleged injuries. That is, Mr. Wolf’s alleged injuries

were not caused by the two proceedings. Instead, the alleged injuries were caused by Defendants’

actions. In other words, plaintiff’s injury is not caused by state-court judgments, and the Rooker-

Feldman doctrine is inapplicable here. See Great W. Mining & Min. Co. v. Fox Rothschild LLP,

615 F.3d 159, 166 (3d Cir. 2010) (two of the requirements for Rooker-Feldman doctrine to apply

is the state-court judgments caused the injury and those judgments were rendered before the federal

suit was filed). Finally, the Court declines adopt the alleged findings in the Municipal Proceeding

because differences in burden of proof. Standlee v. Rhay, 557 F.2d 1303, 1305 (9th Cir. 1977)

(“The difference in the burdens of proof in criminal and civil proceedings usually precludes

application of collateral estoppel.”).

2. Fourth, Fifth, and Fourteenth Amendment Claims (Counts 4–8)

For the remaining counts, two independent grounds warrant dismissal.

a. Qualified Immunity

The Borough Defendants contend Counts 4 through 8 should be dismissed on qualified

immunity grounds. (ECF No. 27-1 at 10.) The Borough Defendants argue they should not be held

liable for the discretionary and reasonable actions of law enforcement in light of Mr. Wolf’s erratic

and harassing conduct. (Id. at 11–12.) The Borough Defendants insist probable cause existed for

the arrest of Mr. Wolf, based in part on Judge Janeczko’s finding in the Forfeiture Proceeding that

Mr. Wolf was harassing Ms. Wolf with the Dissemination Activities and that such activities are

not constitutionally protected. (Id. at 12.) The Borough Defendants further contend Mr. Wolf fails

to articulate what actions of Defendants have caused him a constitutionally cognizable injury. (Id.

at 25.) Mr. Wolf counters the Forfeiture Proceeding is unrelated to this case and is not dispositive

of his claims. (ECF No. 28 at 5.) Mr. Wolf further argues Judge Janeczko did not specifically find

probable cause for his arrest. (Id.)

“The doctrine of qualified immunity protects government officials ‘from liability for civil

damages insofar as their conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.’” Messerschmidt v. Millender, 565 U.S.

535, 546 (2012) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). “[W]hether an official

protected by qualified immunity may be held personally liable for an allegedly unlawful official

action generally turns on the ‘objective legal reasonableness’ of the action, assessed in light of the

legal rules that were ‘clearly established’ at the time it was taken.” Messerschmidt, 565 U.S. at 546

(quoting Anderson v. Creighton, 483 U.S. 635, 639 (1987)). “[L]aw enforcement officials will in

some cases reasonably but mistakenly conclude that probable cause is present, and [courts] have

indicated that in such cases those officials—like other officials who act in ways they reasonably

believe to be lawful—should not be held personally liable.” Anderson, 483 U.S. at 641 (citing

Malley v. Briggs, 475 U.S. 335, 344–45 (1986)). “[Q]ualified immunity questions should be

resolved at the earliest possible stage of a litigation.” Anderson, 483 U.S. at 646 n.6 (citations

omitted).

Here, Mr. Wolf was prosecuted and arrested for alleged harassment and cyber harassment.

A person commits harassment “if, with purpose to harass another, he . . . [m]akes . . . a

communication . . . in offensively coarse language, or any other manner likely to cause annoyance

or alarm.” N.J. Stat. Ann. § 2C:33-4(a). Specifically:

A person commits the crime of cyber-harassment if, while making a

communication in an online capacity via any electronic device or

through a social networking site and with the purpose to harass

another, the person . . . knowingly sends . . . any lewd, indecent, or

obscene material to or about a person with the intent to emotionally

harm a reasonable person or place a reasonable person in fear of

physical or emotional harm to his person.

N.J. Stat. Ann. § 2C:33-4.1(a)(2).

During the Forfeiture Proceeding, Mr. Wolf denied the harassing nature of the

Dissemination Activities. On the first day of the proceeding, Mr. Wolf, through his counsel, argued

the Dissemination Activities were “not for the purpose of harassment” and Mr. Wolf did not harass

Ms. Wolf. (ECF No. 26-4 at 37–38.) Mr. Wolf’s legal counsel explained Mr. Wolf was making

truthful statements about Ms. Wolf during her election campaign, such that the Dissemination

Activities were political in nature and constituted an exercise of Mr. Wolf’s First Amendment

rights. (Id. at 35–36.) Judge Janeczko rejected Mr. Wolf’s legal counsel’s arguments and stated

the Dissemination Activities were conducted with “a purpose to harass” and constituted

harassment. (Id. at 37–38.) Thereafter, multiple witnesses discussed the factual details of the

Dissemination Activities before Judge Janeczko, Mr. Wolf, and his legal counsel. See Part III.B.1,

supra. At the end of the Forfeiture Proceeding, Judge Janeczko described the Dissemination

Activities as “go[ing] beyond exercising constitutional rights” and “a smear campaign.” (ECF No.

26-7 at 12.) Judge Janeczko also cited with approval Hoffman’s testimony that the Dissemination

Activities were “disgusting,” “out of the ordinary,” and “beyond reasonableness.” (ECF No. 26-7

at 12.) These records show Borough Defendants were reasonable to believe Mr. Wolf had a

harassing purpose and an intent to emotionally harm a reasonable person, and the Dissemination

Activities were likely to cause annoyance or alarm on Ms. Wolf’s part. This in turn shows the

Borough Defendants acted reasonably in prosecuting and arresting Mr. Wolf for harassment and

cyber harassment.

Therefore, the Borough Defendants are entitled to qualified immunity, which bars Mr.

Wolf’s § 1983 claims against them for malicious prosecution, false arrest, and false imprisonment.

See Ianuale v. Borough of Keyport, Civ. A. No. 16-9147, 2018 U.S. Dist. LEXIS 177515, at *20,

27 (D.N.J. Oct. 16, 2018) (dismissing the plaintiffs’ § 1983 claim for malicious prosecution, false

arrest, and false imprisonment against the defendant police officers due to qualified immunity).

b. Insufficient Pleading

The Court finds Mr. Wolf’s pleading insufficient. “Defendant knew” (ECF No. 1 ¶¶ 57,

64); “policies, practices and/or customs of The Borough of Emerson” (id. ¶¶ 73, 79 84); “without

probable cause” (id. ¶¶ 70, 76); and “conspired” (id. ¶ 81) are all classic examples of conclusory

pleadings, and they cannot survive a motion to dismiss. See McTernan v. City of York, 564 F.3d

636, 658 (3d Cir. 2009) (holding that to satisfy the pleading standard, the plaintiff “must identify

a custom or policy, and specify what exactly that custom or policy was”); In re Advanta, 180 F.3d

at 538 (affirming district court’s conclusion that plaintiffs “may not rest on a bare inference that a

defendant ‘must have had’ knowledge of the facts”); Gary v. Workers Comp. Appeals Bd., No. 19-

2589, at *3 (3d Cir. Oct. 16, 2019) (affirming district court conclusion that barebone allegation of

defendants “conspired” will not survive a motion to dismiss); Boseman v. Upper Providence Twp.,

No. 16-1338, at *13 (3d Cir. Feb. 27, 2017) (affirming district court conclusion that conclusory

allegation of “without probable cause” will not survive a motion to dismiss).

Nevertheless, the dismissal is without prejudice. See Mallela v. Cogent Infotech Corp., Civ.

A. No. 19-1658, 2020 U.S. Dist. LEXIS 87668, at *8 (W.D. Pa. May 19, 2020) (“The [c]ourt will

dismiss the [plaintiff’s] claims without prejudice because there are not enough facts alleged to

plausibly support any of these claims.”); Riconda v. US Foods, Inc., Civ. A, No. 19-1111, 2019

U.S. Dist. LEXIS 153311, at *9 (D.N.J. Sept. 6, 2019) (dismissing the plaintiff’s claim without

prejudice, because “this [wa]s the first time that the sufficiency of the [plaintiff’s] allegations [for

the claim] ha[d] been tested”).

IV. CONCLUSION

For the reasons set forth above, Ms. Wolf’s Motion to Dismiss and Borough Defendants’

Motion for Judgment on the Pleadings are GRANTED. Mr. Wolf’s Complaint is DISMISSED

WITHOUT PREJUDICE. Mr. Wolf has 30 days to file an Amended Complaint, and failure to

do so will turn dismissals without prejudice into dismissals with prejudice. An appropriate order

follows.

Date: November 29, 2021 /s/ Brian R. Martinotti___________

HON. BRIAN R. MARTINOTTI

UNITED STATES DISTRICT JUDGE