MESSNER v. WEINGARTEN

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

STEPHANIE MESSNER,

Plaintiff,

Civil Action No. 19-15752 (RK) (RLS)

Vv.

KARYN R. WEINGARTEN, in her official OPINION

capacity of Union County Assistant Union

County Prosecutor, et al.,

Defendants.

KIRSCH, District Judge

THIS MATTER comes before the Court on a Motion to Dismiss, (ECF No. 46), and

Motion for Order to Show Cause, (ECF No. 47), filed by pro se plaintiff, Stephanie Messner

(“Plaintiff”). The Court has carefully considered the parties’ submissions and decides the motions

without oral argument pursuant to Federal Rule of Civil Procedure 78(b) and Local Civil Rule

78.1(b). For the reasons that follow, Plaintiff's Motion to Dismiss is GRANTED and her Motion

for Order to Show Cause is DENIED. In addition, Defendant New Jersey State Board of

Psychological Examiners is DISMISSED from this action with prejudice based on Eleventh

Amendment Immunity. Finally, Plaintiff is ORDERED, by November 15, 2023, to effect service

on the additional defendants named in the Amended Complaint in compliance Federal Rule of

Civil Procedure 4, or the case against any Defendant who has not been so served shall be dismissed

without prejudice pursuant to Rule 4(m) for failure to effect proper service. The Court notes that

this case has been pending for more than four years without the commencement of discovery.

I. BACKGROUND

This case arises out of a state court custody dispute between Plaintiff and Miklos Hajdu-

Nemeth, the father of Plaintiff's children. On August 3, 2015, Hajdu-Nemeth filed a motion in

New Jersey Superior Court for a change of custody of their two children. (“Amend. Compl.” at

20, ECF No. 39.) Plaintiff alleges that psychologist Dr. William F. Walsh performed a child

custody evaluation of the children on behalf of Hajdu-Nemeth and served as Hajdu-Nemeth’s

expert witness during the course of their custody dispute. (Id. at 6, 18; see also ECF No. 46 at 4—

5.) On July 25, 2017, following Dr. Walsh’s evaluation, the court designated Hajdu-Nemeth as the

parent of primary residence and Plaintiff as the parent of alternate residence. (Amend. Compl. at

28; see also Compl. JJ 2, 8, 50, 54); Messner v. Hajdu-Nemeth, No. A-5607-16T1, 2019 WL

692149, at *2 (N.J. Super. Ct. App. Div. Feb. 20, 2019). On February 20, 2019, the Appellate

Division affirmed the Superior Court’s Order, (Compl. Jf 55-60); see also Messner, 2019 WL

692149, at *1, and on September 4, 2019, the New Jersey Supreme Court denied Plaintiff’ s petition

for certification, Messner v. Hajdu-Nemeth, 216 A.3d 970 (N.J. 2019).

On July 24, 2019, Plaintiff filed the instant case in federal court. In her original Complaint,

Plaintiff alleged that eight state court judges (collectively, “Judge Defendants’), two state court

probation officers, and Union County assistant prosecutor, Karyn Weingarten (collectively,

“Defendants”) violated her constitutional rights under the Due Process and Equal Protection

Clauses of the Fourteenth Amendment during the course of the state court child custody

proceedings. Plaintiff alleged, inter alia, that her children were “parentally kidnapped” by Hajdu-

Nemeth, that she was given no parenting time, and that Defendant Weingarten directed the police

to prohibit Plaintiff from filing civilian criminal complaints related to Hajdu-Nemeth’s kidnapping

of their children. (Compl. ff 3, 8, 63.) The original Complaint also sought the Court to “move”

her “FD case” out of Somerset County “to a county not connected in anyway [sic] to Somerset

County or adjacent to Somerset County... .” Ud. 2.)

On November 29, 2019, Defendants moved to dismiss the Complaint pursuant to Federal

Rules of Civil Procedure 12(b)(1) and 12(b)(6). (ECF No. 16.) Defendants argued, inter alia, that

Plaintiff's claims against them in their official capacities were barred by the Eleventh Amendment

and that they were entitled to absolute immunity from suit in their individual capacities. The

Honorable Freda L. Wolfson granted in part and denied in part Defendants’ motion. (ECF No. 22.)

Chief Judge Wolfson found that Plaintiff's claims against Defendants in their official capacities

were barred by the Eleventh Amendment. (Ud. at 4.) She then found that the Judge Defendants

were absolutely immune from liability for individual capacity claims under the doctrine of judicial

immunity and that Defendants Howard and Barracano, as probation officers for the New Jersey

Superior Court, were also immune based on quasi-judicial immunity. (/d. at 4-5.) Accordingly,

the Judge Defendants, Defendant Howard, and Defendant Barracano were dismissed from this

case with prejudice. (/d. at 8.) However, Chief Judge Wolfson found that Defendant Weingarten,

as an assistant prosecutor for Union County, was not entitled to prosecutorial immunity for

Plaintiffs individual capacity claims. (/d. at 7.) Judge Wolfson reasoned that Plaintiff’ s allegations

that Defendant Weingarten directed the police to prevent Plaintiff from bringing complaints

against Hajdu-Nemeth pertained to alleged acts that preceded any decision by Defendant

Weingarten to initiate a prosecution. (/d.)

On January 28, 2022, Plaintiff filed an Amended Complaint, adding the Borough of

Garwood, the Township of Franklin, Noelle Jiminez (Garwood Court Administrator), Keila

Martinez (Franklin Township Court Administrator), Yoana Yankova (Somerset County Assistant

Prosecutor), the New Jersey Board of Medical Examiners (the “Board”’), Indira Nunez and Michael

Walker (former Executive Directors of the Board), and John and Jane Does 1—100. (Amend.

Compl., ECF No. 39).! Plaintiff again requests to have her “FD case moved out of Somerset

County immediately.” Ud. at 6.) She also seeks monetary damages “against the State and County

Defendants” for, inter alia, depriving her of parenting time and the ability to make medical and

educational decisions for her children, blocking her from filing complaints about Hajdu-Nemeth,

and facilitating Hajdu-Nemeth’s kidnapping of her children. Ud. at 7.) Plaintiff asks that

Defendants Martinez and Yankova be removed and impeached “for failure to protect the public by

causing direct interference with the public policy of the entitlement of an American Citizen and/or

a Citizen residing in the State of New Jersey to be able to file a criminal complaint for a criminal

charge for the parental kidnapping of a child... .” Ud. at 3.) Plaintiff further requests “injunctive

relief by way of a Federal investigation into [the Board] and the process of handling complaints”

and asks that the Court “sanction[]” Dr. Walsh—who is not named as a defendant in this action—

by stripping him of his license. (/d.)

On February 4, 2022, after Plaintiff failed to provide proof of service of the Amended

Complaint, this case was administratively terminated pending service of the additional defendants.

(ECF No. 41.) On February 22, 2023, the Honorable Rukhsanah L. Singh ordered Plaintiff to

submit a letter to the Court regarding the status of service on the additional defendants by March

15, 2023. (ECF No. 42.) After Plaintiff failed to respond to Magistrate Judge Singh’s order, on

April 5, 2023 the Court issued a Notice of Call for Dismissal pursuant to Local Rule 41.1(a) for

lack of prosecution. (ECF No. 45.)

Tn the Amended Complaint, Plaintiff makes numerous allegations against the Judge Defendants and argues

that her “inalienable rights” should “trump Absolute Judicial Immunity, Quasi Immunity, [and] Qualified

Immunity.” (Amend. Compl. at 4.) As noted above, the Judge Defendants, as well as Defendants Howard

and Barracano, who served as probation officers for Somerset County, have been dismissed from this action

with prejudice. The Court therefore will not consider identical claims renewed against these Defendants.

On April 19, 2023, Plaintiff filed the pending Motion to Dismiss, seeking dismissal of her

claims against “the additional defendants EXCEPT FOR Karyn Weingarten, Yoana Yankova and

the State Board of Psychological Examiners which includes Indira Nunez, Michael Walker, and

the current Executive Director and agents of the [B]oard responsible for disciplinary action.” (ECF

No. 46 at 1.) Plaintiff also requests that the Court “extend [her] the time [she] need[s] to pursue

this matter” or allow her to “reopen it regardless of the statute of limitations.” (/d. at 9.) Finally,

Plaintiff requests “additional time to hire a third party to serve” Defendants. (/d. at 11.) On May

4, 2023, Plaintiff also filed a Motion for Order to Show Cause. (ECF No. 47.) In it, Plaintiff asks

the Court to issue an Order that “protects [her] from ongoing harassment and retaliation of the

Somerset County Probation Department and any Judges that partake in harassing [her] and

incarcerating [her] under false pretenses.” (/d. at 1.)

The Court will first address Plaintiffs pending motions. Then, the Court will consider its

subject matter jurisdiction over Plaintiff's claims. Finally, the Court will address the ongoing

issues with service of process in this case.

Il. LEGAL STANDARDS

a. Dismissal on Plaintiff's Request

Federal Rule of Civil Procedure 41 provides for a plaintiff to request that the Court dismiss

a pending case:

Except as provided in Rule 41(a)(1), an action may be dismissed at

the plaintiffs request only by court order, on terms that the court

considers proper. If a defendant has pleaded a counterclaim before

being served with the plaintiff's motion to dismiss, the action may

be dismissed over the defendant's objection only if the counterclaim

can remain pending for independent adjudication. Unless the order

states otherwise, a dismissal under this paragraph (2) is without

prejudice.

Fed. R. Civ. P. 41(a)(2). Courts have adopted a “liberal policy” for plaintiffs seeking voluntary

dismissal, and the Third Circuit instructs that Rule 41 motions generally “should be allowed unless

defendant will suffer some prejudice other than the mere prospect of a second lawsuit.” In re Paoli

R.R. Yard PCB Litig., 916 F.2d 829, 863 (3d Cir. 1990) (quoting 5 James Wm. Moore et al.,

Moore’s Federal Practice §41.05[1] (1988)); see also Andreozzi v. Warden McKean FCI,

828 F. App’x 141, 145 (3d Cir. 2020) (“Ordinarily, a motion for voluntary dismissal without

prejudice under Rule 41(a)(2) should be granted in the absence of prejudice to the opposing

party.”).

b. Eleventh Amendment Immunity

The Eleventh Amendment limits a federal court’s jurisdiction over actions against a state.

See In re Hechinger Inv. Co. of Del., 335 F.3d 243, 249 (3d Cir. 2003). The state’s sovereign

immunity from suit under the Eleventh Amendment also extends to ‘“‘arms of the state,” such as

state agencies and departments. See Pennhurst, 465 U.S. at 99; Chisolm v. McManimon, 275 F.3d

315, 322-23 (3d Cir. 2001) (“Eleventh Amendment immunity may be available to a state party-

in-interest notwithstanding a claimant’s failure to formally name the state as a defendant.”). The

protections of the Eleventh Amendment also extend to protect entities when “the state is the real,

substantial party in interest.” Ford Motor Co. v. Dep’t of Treasury, 323 U.S. 459, 464 (1945). In

general, “state agencies... are routinely afforded Eleventh Amendment immunity” where □□□□

judgment sought would expend itself on the public treasury or domain, or interfere with the public

administration, ...or if the effect of the judgment would be to restrain the Government from

acting, or to compel it to act.” Bennett v. City of Atlantic City, 288 F. Supp. 2d 675, 679 (D.N.J.

2003) (quoting Dugan v. Rank, 372 U.S. 609, 620 (1963)). A court may raise the issue of sovereign

immunity based on the Eleventh Amendment sua sponte. See Durham y, Kelley, No. 21-3187,

2023 WL 6108591, at *5 (3d Cir. Sept. 19, 2023) (recognizing a district court’s sua sponte review

of sovereign immunity); Jones v. U.S. Dist. Court for the Dist. of Del., 649 F. App’x 132, 132-33

(3d Cir. 2016) (affirming a district court’s sua sponte dismissal based on sovereign immunity).

c. Service of Process

Federal Rule of Civil Procedure 4 governs the requirements for proper service. Rule 4

provides that a plaintiff must serve his summons and complaint on each defendant within ninety

(90) days of filing the complaint. Fed. R. Civ. P. 4(m). If a defendant is not served within that time,

“the court—on motion or on its own after notice to the plaintiff—must dismiss the action without

prejudice against that defendant or order that service be made within a specified time. But if the

plaintiff shows good cause for the failure, the court must extend the time for service for an

appropriate period.” /d.

Tt. DISCUSSION

a. Plaintiff?s Motions

At the outset, the Court considers Plaintiff’s own motion to dismiss all additional

Defendants except for Defendant Weingarten (who was named in the original Complaint),

Defendant Yankova, and “the State Board of Phycological Examiners which includes Indira

Nunez, Michael Walker, and the current Executive Director and agents of the board responsible

for disciplinary action” (“Board Defendants”). (ECF No. 46 at 1.) The Court does not perceive any

prejudice to the additional defendants, who have not yet been served in this case, let alone filed a

counterclaim. Accordingly, Plaintiff's Motion to Dismiss is GRANTED, and Defendants Borough

of Garwood, Township of Franklin Somerset, Jiminez, and Martinez are hereby DISMISSED

without prejudice.”

Also pending is Plaintiff's “Motion for an Order to Show Cause,” requesting an order

protecting her from “ongoing harassment and retaliation of the Somerset County Probation

Department and any Judges that partake in harassing [her] and incarcerating [her] under false

pretenses.” (ECF No. 47 at 1.) As for relief, Plaintiff asks for an “order of protection” and “change

in venue to get [her] case out of Somerset County.” (/d.) Plaintiff seems to allege that the Judge

Defendants and the Somerset County Probation Department retaliated against her for filing this

lawsuit by having her “falsely accused, arrested, [and] incarcerated based on a false pretense that

[she] was not in compliance with child support payments.” (id. at 2.) Chief Judge Wolfson already

dismissed Plaintiffs claims that the Judge Defendants “punished” Plaintiff or “‘retaliate[d]” against

her, (Compl. {J 76-78; ECF No. 22 at 4-6), and denied Plaintiffs request move her case out of

Somerset County, finding that Plaintiff's official capacity claims against these Defendants were

barred by the Eleventh Amendment and Plaintiff's individual capacity claims against same were

barred by the judicial and quasi-judicial immunity doctrines, (id. at 4—6).? The Judge Defendants

have been dismissed from this action with prejudice, as have Somerset County probation officers,

Defendants Howard and Barracano, (ECF No. 22.) Accordingly, Plaintiff may not attempt to state

claims against these Defendants, and her Motion for an Order to Show Cause is DENIED.

* In her Motion to Dismiss, Plaintiff also requests that the time to effect service be extended and that the

Court subpoena the Board for the contact information of its current and former directors, These requests

are addressed below.

> To the extent that Plaintiff is now attempting to state claim against the Somerset County Probation

Department, itself, or against different Somerset County probation officers not previously named as

defendants, these claims are also barred by the Eleventh Amendment and judicial and quasi-judicial

immunity doctrines.

b. Eleventh Amendment Immunity

Next, the Court will dismiss Plaintiff's claims against the Board as same are barred by the

Eleventh Amendment. Plaintiff’s claims against the Board pertain to the alleged conduct of

psychologist, Dr. Walsh. Plaintiff alleges that the Board, which regulates the licensure of

psychologists in the state of New J ersey, refused to address her complaints about Dr. Walsh, who

Plaintiff alleges was “directly involved in the scheme of the premeditated kidnapping” of her

children. (Amend. Compl. at 5.) Plaintiff alleges that Dr. Walsh “conditioned and gaslighted [her]

children,” which caused them to not want to remain in Plaintiffs custody. (/d. at 5, 30.) Plaintiff

claims that the Board failed “to adhere to the standards of their job description” and failed to

protect her from Dr. Walsh’s abuse of authority as a child custody evaluator. (/d. at 6, 8.) Plaintiff

seeks “injunctive relief by way of a Federal investigation into the [the Board] and the process of

handling complaints”; she also requests that her complaints against Dr. Walsh be addressed and

that he be “sanctioned accordingly with a loss of his license.” (/d. at 3.)

The Court finds that the Board is an arm of the state and, therefore, is entitled to sovereign

immunity under the Eleventh Amendment. The Board is part of the Division of Consumer Affairs

within the New Jersey Department of Law and Public Safety. Courts in this district have already

determined that the Division of Consumer Affairs and Department of Law and Public Safety are

arms of the state for the purpose of Eleventh Amendment immunity. See, e.g., Johnson, v. □□□

State Bd. of Cosmetology and Hairstyling, No. 21-10429, 2022 WL 645518, at *3 (D.N.J. Mar. 4,

2022); Kaul v. Christie, 372 F. Supp. 3d 206, 243 (D.N.J. 2019); Cook v. Superior Ct. of N.J., No

10-409, 2010 WL 2836409, at *1 (D.N.J. July 14, 2010). Indeed, one court in this district has held

that the New Jersey State Board of Medical Examiners, which, like the New Jersey State Board of

Psychological Examiners, is housed in the Division of Consumer Affairs, was immune from suit

under the Eleventh Amendment. Zahl v. N.J. Dep’t of L. & Pub. Safety, No. 06-3749, 2008 WL

816821, at *1 (D.N.J. Mar. 26, 2008). Accordingly, the Court finds that the Board is entitled to

Eleventh Amendment Immunity, and thus the Board is DISMISSED from this action with

prejudice.

c. Service of Process

Finally, the Court turns to the issues with service of process in this case. As noted above,

there is no indication on the docket, or otherwise from Plaintiff, that Plaintiff has served the

additional defendants named in the Amended Complaint. Plaintiff filed the Amended Complaint

over a year and a half ago, on January 28, 2022. (ECF No. 39.) After Plaintiff failed to provide

proof of service, this case was administratively terminated pending service of the additional

defendants. (ECF No. 41.) Thereafter, Judge Singh ordered Plaintiff to submit a letter to the Court

regarding the status of service on the additional defendants, (ECF No. 42), and after Plaintiff failed

to do so, the Court issued a Notice of Call for Dismissal, which was withdrawn after Plaintiff filed

her Motion to Dismiss and Motion for Order to Show Cause.

In her Motion to Dismiss, Plaintiff concedes that she has not served the additional

Defendants and requests additional time to do so.4 (ECF No. 46 at 3.) Accordingly, by November

“ Plaintiff also represents that she has not served Defendant Weingarten. (ECF No. 46 at 3.) However, the

Court notes that Defendant Weingarten, who was named in the original Complaint, was served with a

summons and the original Complaint. (ECF No. 3 at 1.) When a defendant has been properly served with a

summons and original complaint under Rule 4, service of an amended complaint need only comply with

Rule 5. Fontanez y. Hicks, No, 22-20286, 2021 WL 1608902, at *4 (D.N.J. Apr. 23, 2021); Freedom Med.,

Inc. Hall, No. 06-3195, 2012 WL 13005482, at *1 (E.D. Pa. Sept. 21, 2012); see also Local Civil Rule

5.1(a). Rule 5’s service requirements are more lenient than those under Rule 4; they permit, inter alia,

service simply by filing with the court’s electronic-filing system. Fed. R. Civ. P. 5(b). Defendants noted in

a footnote in their Motion to Dismiss that original service upon Defendant Weingarten was not proper under

Rule 4 because she was not personally served; indeed, Plaintiff’s certificate of service states that the

summons and complaint were left with paralegal, Barbara Sullivan. (ECF No. 3 at 1.) However, the Court

need not decide whether service of the summons and original Complaint was proper under Rule 4 because

Defendant Weingarten has since appeared in this action, Therefore, service of process upon her need not

be “effected anew.” Kane v. Cent. Am. Min. & Oil, Inc., 235 F. Supp. 559, 566 (S.D.N.Y. 1964); see also

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15, 2023, Plaintiff is directed to effect service on the additional Defendants in compliance with

Rule 4, or the case against any Defendant who has not been so served shall be dismissed without

prejudice pursuant to Rule 4(m) for failure to effect proper service.

4B Wright & Miller, Federal Practice & Procedure § 1146 (4th ed. 2022); 1 James Moore et al. Moore’s

Federal Practice — Civil § 5.03 Gd ed. 2022),

° Plaintiff also requests, without citation to legal authority, a subpoena for the address and contact

information “of the former Executive Director of the Board of Psychological [E]xaminers Michael Walker

Phd. who Endira Nunez replaced and now to Edie Nugent Executive Director at P.O Box 45017 Newark,

New Jersey 07101.” (ECF No. 46 at 4, 11). Plaintiff’s request is difficult to discern, and the Court will not

hypothecate as to what Plaintiff is seeking. Moreover, while Courts in the Third Circuit permit plaintiffs,

upon a showing of good cause, to move for leave to serve early discovery to obtain the identities of

defendants so that they may be served, Plaintiff has not demonstrated the requisite good cause. Strike 3

Holdings, LLC v. Doe, No. 18-12585, 2020 WL 3567282, at *4 (D.N.J. June 30, 2020) (quotation marks

and citations omitted); Malibu Media, LLC v. John Doe, No. 16-942, 2016 WL 952340, *1 (D.N.J. Mar.

14, 2016) (quotation marks and citations omitted),

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IV. CONCLUSION

For the foregoing reasons, Plaintiff's Motion to Dismiss is GRANTED and Motion for

Order to Show Cause is DENIED. In addition, the Board is DISMISSED from this action with

prejudice based on Eleventh Amendment immunity. Finally, Plaintiff is ORDERED, by

November 15, 2023, to effect service on the additional Defendants in compliance Rule 4, or the

case against any Defendant who has not been so served shall be dismissed without prejudice

pursuant to Rule 4(m) for failure to effect proper service.

eal T KIRSCH —

UNITED STATES DISTRICT JUDGE

Dated: October 16, 2023

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