SHORTER v. NJ DIVISION OF PENSION & BENEFITS

IN THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF NEW

JERSEY CAMDEN VICINAGE

SUZANNE SHORTER,

Plaintiff,

Civil No. 22-02062 (RMB/AMD)

v.

NJ DIVISION OF PENSION & OPINION

BENEFITS,

Defendant.

BUMB, Chief District Judge

Plaintiff Suzanne Shorter (“Plaintiff”), who is appearing pro se, moved for

default judgment [Docket No. 10] against Defendant the New Jersey Division of

Pension & Benefits (“Defendant”), which is represented in this matter by Deputy

Attorney General Yi Zhu. In response, Defendant filed a Cross Motion to Dismiss

Plaintiff’s Complaint In Lieu of an Answer and to Vacate Any Default. [Docket No.

11.] For the reasons that follow, Plaintiff’s motion will be DENIED and Defendant’s

motion will be GRANTED.

I. Background

On April 8, 2022, Plaintiff filed a complaint against Defendant in this Court.

[Docket 1.] Since filing the Complaint, Plaintiff has filed several subsequent letters

with miscellaneous requests and information regarding her claims. [Docket Nos. 4,

5, 7, 9.] Plaintiff alleges Defendant violated 42 U.S.C. § 1981 by denying her

accidental disability retirement benefits after she was involved in a workplace

accident. [Docket 4, at 7-9.] More specifically, Plaintiff alleges that, in March of

2011, she was “severely injured on [the] job as a result of an approximately 6-foot fall

where [she] sustained multiple injuries...[while] working at the Hopkins House Art

Gallery in marketing.” [Docket 4, at 3.] As a result of her injury, Plaintiff allegedly

“struggled with the physical duties” and was “eventually suspended for complaining

[of her injuries.]” [Id.]

Plaintiff alleges that on February 27, 2014, she applied for accidental disability

retirement benefits, but her application was denied by the Board of Trustees of the

Public Employees’ Retirement System (“Board”) in mid-December 2014. [Id. at 3-

4.] Plaintiff requested a hearing to appeal the Board’s decision and appeared before

Administrative Law Judge, the Honorable Dean Buono; however ALJ Buono

affirmed the Board’s decision. [Id.] ALJ Buono issued an initial decision finding

Plaintiff not eligible for accidental disability retirement benefits. [Id.; see also docket

11-2, Ex. A.] In the decision, ALJ Buono gave the following explanation:

[Plaintiff] was not totally and permanently disabled from the performance of

her regular and assigned job duties; that she was not mentally or physically

incapacitated from the performance of her usual or other duties that her

employer was willing to offer; and that there was no evidence of direct

causation of a total and permanent disability from the April 4, 2011, accident.

[Docket 11-2, Ex. A.] The Board adopted ALJ Buono’s decision on July 20, 2018.

[Docket No. 11, Ex. B.]

Plaintiff then appealed the final administrative decision to the New Jersey

Superior Court, Appellate Division, where the appeal was denied and dismissed.

[Docket 11-2, Ex. C.] She then appealed to the New Jersey Supreme Court, where

the appeal was again denied and dismissed. [Docket 11-2, Ex. D.]

Plaintiff now seeks remedy with this Court. Plaintiff’s complaint sets forth a

single cause of action arising under 42 U.S.C. § 1981. [Docket No. 1.] Plaintiff

alleges the independent medical evaluator and ALJ Buono received an erroneous

certification from Camden County during the agency proceedings stating that

Plaintiff never suffered a workplace accident and such an accident is not on file.

[Docket 4, at 4.] Furthermore, Plaintiff alleges that Dr. Lakin and ALJ Buono never

received a description of Plaintiff’s physical job duties. [Id. at 5.] Plaintiff alleges

these errors “obfuscated [her] case to such a degree [that] ignor[ed] her due process

and violating her civil rights.” [Id.] As a result, Plaintiff requests this Court “correct

the [state courts’] record with true factual findings,” “investigat[e] on it[,]” “overturn

[the Board’s and the state courts’] decision[,]” “grant[] her accidental disability

retirement” and “compensate the difference between early retirement that [she] was

forced to take and accidental disability retirement.” [Id.]

On July 1, 2022, Plaintiff filed a letter with the court, requesting that “a U.S.

Marshall or someone specially appointed, serve this summons to the Defendants in

accordance with the Federal Rules of Civil Procedure, Rule 4” because Plaintiff was

“out [of] the state.” [Docket 4, at 1.] On July 6, 2022, Plaintiff withdrew this request

and instead served Sherri Sheehan, a pension benefit specialist with the New Jersey

Division of Pension and Benefits, with the complaint and summons on July 11,

2022. [Docket Nos. 5, 6.]

On July 15, 2022, Plaintiff filed a letter with this Court, requesting to amend

her complaint in order to add an additional cause of action, alleging violation of Due

Process guaranteed by the 14% Amendment. [Docket 7.] On July 18, 2022, United

States Magistrate Judge Ann Marie Donio issued an order dismissing Plaintiffs

letter request, without prejudice, because Defendant had yet to respond to the

Complaint. Thus, Judge Donio found that “Plaintiff may file an amended complaint

without seeking leave of Court” pursuant to Federal Rule of Civil Procedure 15(a)(1)

(B). [Docket 8.] Nevertheless, Plaintiff never formally amended her complaint.

On September 16, 2022, Plaintiff moved for default judgment against the

Defendant, alleging Defendant failed to timely respond to the complaint. [Docket

10.] In response, Defendant filed a cross motion to vacate the default, if any, and to

dismiss the complaint, with prejudice, for lack of subject matter jurisdiction and

failure to state a claim. [Docket 11.]

Il. Legal Standard

a. Default Judgment

To prevail on her pending motion for default judgment, Plaintiff must satisfy

each of the following requirements: “(1) the entry of a default pursuant to Federal

Rule of Civil Procedure 55(a); (2) the absence of any appearance by any party to be

defaulted; (3) that the defendant is neither an infant nor incompetent; (4) that the

defendant has been validly served with all pleadings; (5) the amount of the judgment

and how it was calculated; and (6) an affidavit of non-military service in compliance

with the Soldiers' and Sailors' Relief Act.” GE Healthcare Fin. Servs. v. New Brunswick

X-Ray Grp., PA, 2007 U.S. Dist. LEXIS 208, at *9 (D.N.J. Jan. 3, 2007); see also

Nationwide Mut. Ins. Co. v. Starlight Ballroom Dance Club, Inc., 175 F. App'x 519, 521

n.1 (3d Cir. 2006) (“Entry of default by the clerk is a necessary prerequisite to default

judgment.”).

Also applicable is the following requirement under Federal Rule of Civil

Procedure 4(j)(2), which provides 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.” Fed. R. Civ.

Pro. 4(j)(2). Accordingly, parties can fulfill service requirements by either issuing

service in compliance with Federal Rule of Civil Procedure 4(j)(2)(A) or New Jersey

state law. See Thompson v. Dep't of Corr., 2019 U.S. Dist. LEXIS 85806, at *4-5

(D.N.J. May 22, 2019).

The applicable law requires that service may be effectuated

[u]pon the State of New Jersey, by registered, certified or ordinary mail of a

copy of the summons and complaint or by personal delivery of a copy of the

summons and complaint to the Attorney General or to the Attorney General’s

designee named in a writing filed with the Clerk of the Superior Court.

N.J. Ct. R. 4:4-4(a)(7). In order to fulfill requirements for default judgment, Plaintiff

must demonstrate she properly served Defendant, a state government agency, in

compliance with these rules.

b. Dismissal Pursuant to Federal Rule of Civil Procedure 12(b)(1) &

12(b)(6)

“A district court can grant a Rule 12(b)(1) motion to dismiss for lack of subject

matter jurisdiction based on the legal insufficiency of a claim.” Kehr Packages v.

Fidelcor, Inc., 926 F.2d 1406, 1408 (3d Cir. 1991). In assessing a 12(b)(1) motion to

dismiss, the court “must first ascertain whether it presents a 'facial' attack or a

'factual' attack on the claim at issue, because that distinction determines how the

pleading must be reviewed.” Constitution Party of Pa. v. Aichele, 757 F.3d 347, 357 (3d

Cir. 2014). A facial attack does not dispute the facts alleged in the complaint but

rather, whether there is jurisdiction on the face of the complaint. Where there is a

facial attack on a claim, a district court “must only consider the allegations of the

complaint and documents referenced therein and attached thereto, in the light most

favorable to the plaintiff.” Gould Elec. Inc. v. United States, 220 F.3d 169, 176 (3d Cir.

2000). “To decide a motion to dismiss, courts generally consider only the allegations

contained in the complaint, exhibits attached to the complaint and matters of public

record” Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d

Cir. 1993) (holding a court may consider an undisputedly authentic document

attached by defendant as an exhibit if plaintiff’s claims are based upon the

document).

When considering a motion to dismiss for failure to state a claim upon which

relief can be granted, pursuant to Federal Rule of Civil Procedure 12(b)(6), a district

court must “accept as true all allegations in the complaint and all reasonable

inferences that can be drawn therefrom, and view them in the light most favorable to

the plaintiff.” Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005). It is well-settled

that a pleading is sufficient if it contains “a short and plain statement of the claim

showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not

need detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of

her ‘entitle[ment] to relief’ requires more than labels and conclusions, and a

formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007) (first citing Conley v. Gibson, 355 U.S. 41, 47

(1957); then citing Sanjuan v. Am. Bd. of Psychiatry & Neurology, Inc., 40 F.3d 247, 251

(7th Cir. 1994); then citing Papasan v. Allain, 478 U.S. 265, 286 (1986) (alterations in

original). Thus, “[a] motion to dismiss should be granted if the plaintiff is unable to

plead ‘enough facts to state a claim to relief that is plausible on its face.’” Malleus v.

George, 641 F.3d 560, 563 (3d Cir. 2011) (quoting Twombly, 550 U.S. at 570).

Importantly, “[i]n considering a motion to dismiss a pro se complaint, a court

must bear in mind that pro se complaints are held to less stringent standards than

formal pleadings drafted by lawyers.” Dickerson v. New Jersey Inst. of Tech., 2019 WL

6032378, at *4 (D.N.J. Nov. 14, 2019) (citations omitted). This more liberal

construction of pro se complaints does not, however, absolve a pro se plaintiff of the

need to adhere to the Federal Rules of Civil Procedure. See, e.g., Fantone v. Latini, 780

F.3d 184, 193 (3d Cir. 2015) (“a pro se complaint, ‘however inartfully pleaded,’ must

be held to ‘less stringent standards than formal pleadings drafted by lawyers;’ … but

we nonetheless review the pleading to ensure that it has ‘sufficient factual matter;

accepted as true; to state a claim to relief that is plausible on [its] face.’”) (citations

omitted); Badger v. City of Phila. Office of Prop. Assessment, 563 F. App’x 152, 154 (3d

Cir. 2014) (“[c]omplaints filed pro se are construed liberally, but even ‘a pro se

complaint must state a plausible claim for relief.’”) (citing Walker v. Schult, 717 F.3d

119, 124 (2d Cir. 2013).

III. Analysis

a. Plaintiff’s Motion for Default Judgment

First, the Court will consider whether to grant Plaintiff’s Motion for Default

Judgment [Docket No. 10], as governed by Federal Rule of Civil Procedure 55(b).

Although entry of default judgment is within the broad discretion of the District

Court, it is generally a less favorable approach than adjudicating the matter on the

merits. See United States v. $55,518.05 in U.S. Currency, 728 F.2d 192, 194-95 (3d Cir.

1984) (citing Tozer v. Charles A. Krause Milling Co., 189 F.2d 242, 244-45 (3d Cir.

1951)).

As an initial matter, there was never an entry of default by the Clerk of Court

in this case. Furthermore, the Court agrees with Defendant that Plaintiff improperly

attempted service upon a pension benefit specialist with the Division of Pension &

Benefits instead of properly serving either the chief executive officer of the division

pursuant to F.R.C.P. 4(j)(2) or the New Jersey Attorney General or his designee as

prescribed under the applicable New Jersey Court Rule, 4:4-4(a)(7). [Docket No. 11,

at 27.] Because Defendant lacked notice of the suit against them, they were unable to

launch a timely defense. In conclusion, because Plaintiff failed to properly request an

entry of default by the clerk and properly serve Defendant in this matter, she did not

comply with the requirements to even apply for default judgment and her motion

will be denied.

b. Defendant’s Motion to Dismiss Plaintiff’s Complaint

In response to Plaintiff’s Motion for Default Judgment, Defendant moved to

dismiss Plaintiff’s claim under Federal Rule of Civil Procedure 12(b)(1) for lack of

subject-matter jurisdiction and Federal Rule of Civil Procedure 12(b)(6) for failure to

state a claim upon which relief can be granted. [Docket 11, at 9-23.] The Court will

consider the allegations contained in Plaintiff’s complaint as well as the undisputed

public records from Plaintiff’s state court legal proceedings.

i. Dismissal of Plaintiff’s Complaint Pursuant to Rule 12(b)(1)

Defendant first moves to dismiss Plaintiff’s Complaint pursuant to Rule

12(b)(1) for lack of subject-matter jurisdiction. [Docket 11, at 11-12.] First,

Defendant argues that “the Rooker-Feldman doctrine bars the instant suit because

Shorter is merely a state-court loser...inviting the district court to review and overturn

the state court decisions.” [Id. at 6-7.] Defendant also argues “the New Jersey state

courts have exclusive jurisdiction over Shorter’s challenge against the Board’s final

administrative decision surrounding her pension matters.” [Id.] Here, Defendant

argues Plaintiff’s claim lacks subject-matter jurisdiction not by disputing the

underlying facts, but rather, that this Court lacks jurisdiction to hear the claim on its

face. [Docket 11, at 12-13.]

Defendant convincingly argues that this court “lacks subject matter

jurisdiction because the Rooker-Feldman doctrine bars Shorter’s complaint.” [Docket

11, at 14-17.] The Rooker-Feldman doctrine precludes federal district courts from

exercising jurisdiction in “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.”

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

Court held federal district courts lack the appellate authority to “reverse or modify” a

state court decision. Id. at 416.

Plaintiff’s complaint is squarely barred by the Rooker-Feldman doctrine. First,

Plaintiff lost in state court prior to bringing her claim in this Court on April 8, 2022.

[Docket 1.] Plaintiff’s claim for accidental disability retirement benefits was denied

by ALJ Buono and the Board (both initially and upon reconsideration) and her

appeal of the agency decision was denied by both the New Jersey Superior Court,

Appellate Division and the New Jersey Supreme Court.

Second, Plaintiff expressly asks this Court to review and reject the state-court

judgments, exceeding this Court’s jurisdiction. Plaintiff complains of the injury

caused by the state-court dismissal of her accidental disability retirement claim and

requests that this Court, “correct the [state courts’] record with true factual findings”,

“remove false inadmissible information,” “investigat[e] on it,” and “overturn

decision [to] grant me [a]ccidental [d]isability [b]enefit.” [Docket 4, at 9.] Plaintiff’s

request for this Court to exercise appellate jurisdiction over these state court claims,

which have already been adjudicated, is plainly prohibited by the Rooker-Feldman

doctrine. Furthermore, New Jersey state law has clearly defined the process for

petitioners to appeal an unfavorable administrative Board decision to the state court

appellate division, stating that the “... Board's final determination may be appealed

to the Superior Court, Appellate Division.” N.J.A.C. § 17:5-1.6. Thus, New Jersey

State Courts have exclusive jurisdiction over Plaintiff’s claim for benefits, and the

state has firmly granted appellate authority over administrative decisions to the

Appellate Division. Infinity Broad. Corp. v. N.J. Meadowlands Comm'n, 187 N.J. 212,

223-224 (2006). Notwithstanding the Rooker-Feldman doctrine, it would still be

inappropriate for this Court to exercise appellate review over this state administrative

decision, as any appeal ultimately lies with the New Jersey State Courts and the U.S.

Supreme Court. Because this Court lacks subject-matter jurisdiction over Plaintiff’s

claim, Defendant’s motion to dismiss pursuant to Rule 12(b)(1) will be granted with

prejudice.

ii. Dismissal of Plaintiff’s Complaint Pursuant to Rule 12(b)(6)

Even if this Court had subject-matter jurisdiction over Plaintiff’s claim,

Defendant would prevail in their motion to dismiss Plaintiff’s claim for failure to

state a claim upon which relief can be granted under Rule 12(b)(6). Even construing

the complaint liberally, as required for a pro se plaintiff, Plaintiff has failed to comply

with the Federal Rules of Civil Procedure and state a claim upon which relief may be

granted.

Accepting all facts in the complaint as true, Plaintiff states no cause of action

under which this Court would be entitled to grant relief. In McGovern, the Third

Circuit affirmed the 12(b)(6) dismissal of a plaintiff’s claim against a state

defendant, rejecting a private right of action for under 42 U.S.C.S. § 1981.

McGovern v. City of Phila., 554 F.3d 114, 122 (3d Cir. 2009). Similarly, here, this

Court must dismiss Plaintiff’s complaint pursuant to Rule 12(b)(6) because her

only claim against Defendant, a state actor, arises under 42 U.S.C.S. § 1981.

[Docket 1, at 1.] Because Plaintiff does not have a private right of action under

this statute, she fails to state a claim upon which relief can be granted. See

McGovern v. City of Phila., 554 F.3d 114, 122 (3d Cir. 2009).

IV. CONCLUSION

For the reasons stated above, the Court shall deny Plaintiffs Motion for

Default Judgement and dismiss, with prejudice, Plaintiff's Complaint. [Docket

No. 1.] Because Plaintiffs’ administrative claims are barred by the Rooker-Feldman

doctrine and must be adjudicated and appealed exclusively in state court, this

Court lacks subject matter jurisdiction and must dismiss such claims pursuant to

Rule 12(b)(1). Even if Plaintiff could successfully establish federal subject-matter

jurisdiction, the Complaint also fails to state a claim upon which relief can be

granted and must be dismissed under Rule 12(b)(6). An accompanying Order of

today’s date shall issue.

April 6, 2023 s/Renée Marie Bumb

Date Renée Marie Bumb

Chief District Judge

13