# THORPE v. CIPPARULO

> District Court, D. New Jersey · February 29, 2024

URL: https://www.frixlaw.com/law-library/cases/10655680

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** February 29, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

JUDY THORPE,
Plaintiff,
Civil Action No. 23-3590 (RK) (RLS)
v.
ROSEMARIE CIPPARULO, ESQ., MEMORANDUM ORDER
WEISSMAN & MINTZ, LLC,
Defendants.

KIRSCH, District Judge
THIS MATTER comes before the Court upon pro se Plaintiff Judy Thorpe’s (“Plaintiff”)
application to proceed in forma pauperis, (ECF No. 1-1), together with her Complaint, (ECF No.
1). For the reasons explained below, Plaintiff's application to proceed in forma pauperis is
GRANTED and Plaintiff’s Complaint is DISMISSED with prejudice.
I. BACKGROUND
Plaintiffs Complaint—treceived along with her application to proceed in forma pauperis
(“IFP”) on July 5, 2023, (““Compl.,” ECF No. 1)—is framed as an appeal from a court proceeding
in New Jersey. Plaintiff alleges she was wrongfully terminated from her nursing job in 2008. (/d.
18.) Plaintiffs claim for wrongful termination was arbitrated, in which Plaintiff alleges she was
represented by federal Defendants Rosemarie Cipparulo and her firm Weissman & Mintz, LLC
(together, “Defendants”). Ud. § 19.) Plaintiff alleges that Defendants committed malpractice in
representing her during the arbitration, and Plaintiff filed a lawsuit against Defendants in the New
Jersey Superior Court, Law Division, Monmouth County on February 10, 2016. Ud. § 20.) In July
2020, the state trial court granted Defendants’ motion for summary judgment and dismissed the

complaint, and Plaintiff appealed to the New Jersey Superior Court, Appellate Division, which
affirmed the dismissal on May 17, 2022. (Id. 4 21.)! Plaintiff filed a petition for certification for
the Supreme Court of New Jersey, but the petition was denied on January 10, 2023. Ud.
Plaintiff's federal suit alleges that the state court’s decision “reflects irregularities and
oversights regarding the record on Plaintiff's case, which would justify a newly considered ruling.”
(id. § 22.) Specifically, the Complaint seeks this Court to “review the inadequate and/or faulty
reasoning underlying” the Appellate Division’s affirmance of the trial court’s dismissal, based on
its finding that no attorney-client relationship existed between Plaintiff and her attorneys. Ud. J 25
(emphasis omitted).) The Complaint summarizes perceived flaws in the state court’s reasoning.
(Ud. 26-37.) Plaintiff concludes by “respectfully requesting] that the [state court’s] decision be
reviewed.” (Ud. § 38.) The Complaint invokes this Court’s jurisdiction pursuant to 28 U.S.C.
§ 1257(a), which permits appeals from the decision of the highest court of a state to the United
States Supreme Court. (/d. | 8.)
I. LEGAL STANDARD
Pursuant to 28 U.S.C. § 1915(a), the District Court may authorize a plaintiff to proceed IFP
and order a complaint to be filed without requiring the prepayment of filing fees. The statute “‘is
designed to ensure that indigent litigants have meaningful access to the federal courts.” Deutsch v.
United States, 67 F.3d 1080, 1084 (3d Cir. 1995) (quoting Neitzke v. Williams, 490 U.S, 319, 324
(1989)). However, to guard against potential “abuse” of “cost-free access to the federal courts,”

' The Superior Court, Appellate Division and New Jersey Supreme Court decisions are available through
commercial reporters. See Thorpe v. Cipparulo, No. A-0418-20, 2022 WL 1553713 (N.J. Super. Ct. App.
Div. May 17, 2022), cert. denied, 286 A.3d 1184 (N.J. 2023). The Superior Court’s decision states that it
was affirming the trial court’s decision to grant Defendants’ “motion for summary judgment, and dismissing
[Plaintiff’s] complaint alleging legal malpractice.” /d. at *1.
* Plaintiff also filed a petition for writ of certiorari to the United States Supreme Court, which was denied
on October 2, 2023. See Thorpe v. Cipparulo, 144 §. Ct. 124 (2023).

id. (citing Denton v. Hernandez, 504 U.S. 25, 29 (1992)), section 1915(e) empowers the District
Court to dismiss an IFP complaint if it “is frivolous or malicious” or “fails to state a claim on
which relief may be granted.” 28 U.S.C. § 1915(e).
The District Court engages in a two-step analysis when considering a complaint filed with
an IFP application: “First, the Court determines whether the plaintiff is eligible to proceed under
28 U.S.C. § 1915(a). ... Second, the Court determines whether the Complaint should be dismissed
as frivolous or for failure to state a claim upon which relief may be granted, as required by 28
U.S.C. § 1915(e).” Archie v. Mercer Cnty. Courthouse, No. 23-3553, 2023 WL 5207833, at *2
(D.N.J. Aug. 14, 2023) (citing Roman v. Jeffes, 904 F.2d 192, 194 n.1 (3d Cir. 1990)).
UI. DISCUSSION
A. In Forma Pauperis Application
The IFP statute requires a plaintiff to submit “an affidavit stating all income and assets”
and “the plaintiffs inability to pay the filing fee.” Martinez v. Harrison, No. 23-3513, 2023 WL
5237130, at *1 (D.N.J. Aug. 15, 2023) (citing § 1915(a) and Glenn v. Hayman, No. 07-112,
2007 WL 432974, at *7 (D.N.J. Jan. 30, 2007)). In the IFP application, the plaintiff “must state
the facts concerning his or her poverty with some degree of particularity, definiteness or certainty.”
Gross v. Cormack, No. 13-4152, 2013 WL 5435463, at *2 (D.N.J. Sept. 27, 2013) (citing Simon
v. Mercer Cnty. Comm. College, No. 10-5505, 2011 WL 551196, at *1 (D.N.J. Feb 9, 2011)).
Plaintiffs IFP application here has established her inability to pay the filing fee, as the application
states that Plaintiff has a monthly income of only $2,720 and financial assets worth only several
hundred dollars but several thousand dollars in monthly expenses. (ECF No. 1-1.) Therefore,
Plaintiff's IFP application is GRANTED.

B. Complaint Screening
Even if the Court denies the IFP application, the Court still has discretion to review the
merits of an IFP complaint. See Brown v. Sage, 941 F.3d 655, 660 (3d Cir. 2019) (citing 10 James
Wm. Moore et al., Moore’s Federal Practice § 54.104(1)(a) (3d ed. 2019)). The Court may dismiss
any claims that are “(1). . . frivolous or malicious; (2) fail[] to state a claim upon which relief may
be granted; or (3) seek[] monetary relief from a defendant immune from such relief.” 28 U.S.C.
§ 1915(e)(2)(B). A court must be mindful to hold a pro se plaintiff's complaint to “less stringent
standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972).
Plaintiff's Complaint fails to state a claim for two reasons.
First, Plaintiffs federal claim is barred by res judicata. A federal court considering whether
to give preclusive effect to a state court judgment applies that state’s law. See Greenleaf v. Garlock,
Inc., 174 F.3d 352, 357 (3d Cir. 1999). New Jersey’s version of the res judicata doctrine requires
that “(1) the judgment in the prior action must be valid, final, and on the merits; (2) the parties in
the later action must be identical to or in privity with those in the prior action; and (3) the claim in
the later action must grow out of the same transaction or occurrence as the claim in the earlier
one.” McNeil v. Legislative Apportionment Comm’n, 828 A.2d 840, 859 (N.J. 2003) (quoting
Watkins v. Resorts Int'l Hotel & Casino, Inc., 591 A.2d 592, 599 (N.J. 1991)).
Each element is satisfied here. First, the Complaint lays out in careful detail the prior
proceedings, in which the state trial court dismissed Plaintiffs claims on the merits. The Complaint
quotes the Appellate Division’s decision that the dismissal was based on a finding that Defendants
did not represent Plaintiff and therefore could not be liable for legal malpractice. (Compl. {J 25—

26.)° Dismissal of a complaint on summary judgment grounds is a decision on the merits.
McLaughlin v. Bd. of Trs. of Nat’l Elevator Indust. Health Benefit Plan, 686 F. App’x 118, 121
(3d Cir. 2017) (grant of summary judgment “constitutes a final judgment on the merits for the
purposes of res judicata” (citation omitted)). Second, the parties in the state and federal actions—
Plaintiff and Defendants Rosemarie Cipparulo and her firm Weissman & Mintz, LLC—are
identical. (Compl. § 20.) Third, the claims in the two actions relate to the same legal malpractice
claims. Plaintiff states that the claims brought in her state action against her alleged former
attorneys include “professional negligence, legal malpractice, breach of contract, breach of
fiduciary duty, fraud and/or other causes of action allowed by law.” (/d.) The claims in Plaintiff's
federal action, although not clearly stated, turn on “Defendants negligent representation” of
Plaintiff through which she allegedly “suffered irreparable harm.” (/d. at 4.) Therefore, Plaintiffs
claims are barred by res judicata.
Second, Plaintiff's Complaint must be dismissed because this Court lacks jurisdiction
under the Rooker-Feldman doctrine, which holds that a federal district court lacks subject matter
jurisdiction to review state court judgments where a federal plaintiff “essentially appeals from
state-court judgments.” Vuyanich v. Smithton Borough, 5 F Ath 379, 384-85 (3d Cir. 2021)
(quoting Great W. Mining & Min. Co. v. Fox Rothschild LLP, 615 F.3d 159, 165 (3d Cir. 2010)).
Courts in this Circuit apply a four-prong test to determine whether the Rooker-Feldman doctrine
bars a claim, asking whether “‘(1) the federal plaintiff lost in state court; (2) the plaintiff complains

> The Appellate Division’s decision, which contains more detail than the Complaint’s allegations, confirms
that the trial court’s dismissal and appellate court’s affirmance were both on the merits. See Thorpe v.
Cipparulo, No. A-0418-20, 2022 WL 1553713, at *3 (N.J. Super. Ct. App. Div. May 17, 2022). Even if the
decisions from the prior proceedings were not quoted in the Complaint, they would still properly be relied
on to determine whether res judicata barred Plaintiff's federal claims. See Toscano v. Conn. Gen. Life Ins.
Co., 288 F. App’x 36, 38 (3d Cir. 2008) (per curiam) (res judicata defense “may be raised and adjudicated
on a motion to dismiss and the court can take judicial notice of all facts necessary for the decision”).

of injuries caused by the state-court judgments; (3) those judgments were rendered before the
federal suit was filed; and (4) the plaintiff is inviting the district court to review and reject the state
judgments.” Jd. at 385 (quoting Great W. Mining, 615 F.3d at 166).
Plaintiff's claims meet all four prongs. First, Plaintiff lost in state court. The state trial
court dismissed Plaintiff's claim, the state appellate court affirmed the dismissal, and the state’s
highest court denied Plaintiffs petition for certification. (Compl. § 21.) Second, Plaintiff
complains of injuries caused by the state court judgments. The Complaint lists no cause of action
against the named Defendants directly, and instead repeatedly seeks this Court to review the
findings of fact and conclusions of law by the state trial court. Ud. ¥ 23, 25, 34, 38, 40.)4 Third, the
challenged state judgments were rendered before the federal suit was filed. The state trial decision
was issued in July 2020, the state appellate court’s decision was issued in May 2022, and the New
Jersey Supreme Court denied the petition for certification in January 20203. Ud. ¥ 21.) Plaintiff's
federal suit was not filed until July 2023. Finally, Plaintiff repeatedly invites this federal court to
review and reject the state judgments. Ud. § 25 (“Plaintiff respectfully asks that this honorable
Court review the inadequate and/or faulty reasoning underlying this conclusion, as detailed
below.”); id. § 34 (‘[T]his contradiction [in the state court’s decision] cannot go ignored or without
review.”); id. J 38 (“Plaintiff hereby respectfully requests that the decision be reviewed.”); id. □ 40
(“I have shown that [the state decision] contained clear errors of fact including, but not limited to,
in not recognizing a cause of action is suggested by the facts offered. Review of my case is justified

Court considers whether “the source of [Plaintiff's] injury” alleged in the complaint is Defendant
attorneys’ actions which the state court “ratified, acquiesced in, or left unpunished,” rather than the New
Jersey courts’ decisions themselves. See Great W. Mining, 615 F.3d at 167. However, in light of the
Complaint’s omission of any claim against Defendants and its clear, repeated requests for this Court to
review the state court’s decision, the Court concludes that Plaintiff's federal lawsuit is based on the theory
that the state court’s decisions were themselves the source of her harm.

and necessary to provide an objective judicial review ....”).) Therefore, the Court lacks
jurisdiction over Plaintiff's federal Complaint, and it must be dismissed.
The Complaint claims this Court’s jurisdiction under 28 U.S.C. § 1257(a). (Compl. 8.)
That statute states that “[f]inal judgments or decrees rendered by the highest court of a State in
which a decision could be had, may be reviewed by the Supreme Court by writ of certiorari” when
the petition seeks review on certain specified grounds. 28 U.S.C. § 1257(a) (emphasis added). The
Rooker-Feldman doctrine, discussed above, is based on this statute, which courts read to mean “by
negative implication [that] the inferior federal courts lack subject matter jurisdiction to review
judgments of those courts.” #.B. v. Verniero, 119 F.3d 1077, 1090 (3d Cir. 1997), Putting aside
the question of whether Plaintiff has alleged any of the permissible statutory grounds for review,
it is clear that section 1257(a) could only permit Plaintiff to seek the United States Supreme Court
to review the New Jersey Supreme Court’s denial of her petition for certification in the matter.
Section 1257(a) offers no jurisdictional basis for this Court to review the lower New Jersey courts’
decisions.
Therefore, Plaintiff's Complaint is DISMISSED with prejudice pursuant to 28 U.S.C,
§ 1915(e).°

> The Court has considered whether dismissal without prejudice is appropriate in this matter. However, in
light of the clear nature of the relief Plaintiff seeks from the Court—review of the state court’s final decision
in a prior matter involving identical claims and parties—the Court concludes that Plaintiff will not be able
to amend her complaint to state a claim that is not precluded by res judicata and that this Court may exercise
subject matter jurisdiction over. See Perez v. Seterus, Inc., No. 17-5862, 2018 WL 534159, at *3 (D.N.J.
Jan. 24, 2018) (collecting cases for the proposition that dismissal with prejudice appropriate where court
lacks subject matter jurisdiction). Therefore, dismissal will be with prejudice.

IT IS on this 29" day of February, 2024, ORDERED that:
1. Plaintiffs application to proceed in forma pauperis (ECF No. 1-1) is GRANTED;
2. Plaintiffs Complaint (ECF No. 1) is DISMISSED with prejudice pursuant to 28
U.S.C. § 1915(e);
3. The Clerk’s Office is directed to CLOSE this matter;
4. The Clerk’s Office shall serve on Plaintiff by regular U.S. mail this Memorandum
Order to her address of record. a } f /
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ROBERT KIRSCH “
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10655680. Public record. Not legal advice.