Nedal Elfar v. Township of Holmdel

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________________

No. 24-1353

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NEDAL ELFAR,

Appellant

v.

TOWNSHIP OF HOLMDEL; MICHAEL SASSO;

MATTHEW MENOSKY; JOHN MIODUSZEWSKI

_____________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil No. 3-22-cv-05367)

District Judge: Honorable Robert Kirsch

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Argued: November 4, 2024

Before: KRAUSE, SCIRICA, and RENDELL, Circuit Judges.

(Filed: March 3, 2025)

Justin D. Santagata [Argued]

Cooper Levenson

1125 Atlantic Avenue

3rd Floor

Atlantic City, NJ 08401

Counsel for Appellant

David A. Schwartz [Argued]

Schwartz & Posnock

99 Corbett Way

Suite 203

Eatontown, NJ 07724

Counsel for Appellees

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OPINION*

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SCIRICA, Circuit Judge

In this malicious prosecution and municipal liability action based on a series of

trials in New Jersey state court, plaintiff-appellant Nedal Elfar challenges the District

Court’s orders granting defendants-appellees’ motion to dismiss, denying Elfar’s motion

for partial summary judgment, and staying discovery. The court held Elfar failed to state

a claim under 42 U.S.C. § 1983 because it determined his initial conviction was not

vacated pending retrial, rendering any deprivations of liberty he suffered during retrial

“post-conviction restrictions” rather than seizures under the Fourth Amendment. Elfar v.

Twp. of Holmdel, No. 22-5367, 2024 WL 415691, at *8 (D.N.J. Feb. 5, 2024) (“[N]othing

. . . suggests [Elfar’s] municipal court conviction [was] vacated pending appeal . . . .

[T]he Court finds that the restrictions imposed on [Elfar’s] liberty after his conviction in

municipal court cannot provide a basis for his malicious prosecution claim.”).

But the parties dispute whether Elfar’s conviction was vacated pending his retrial,

and one state court judge believed Elfar’s initial conviction had been vacated. Because

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7

does not constitute binding precedent.

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we construe the complaint in the light most favorable to Elfar under Federal Rule of Civil

Procedure12(b)(6), and this case’s procedural history is uniquely murky, we will assume

his conviction was vacated pending retrial. Accordingly, Elfar has sufficiently pled a

seizure—his deprivations of liberty suffered during retrial—and we will reverse the

court’s holding on that issue, vacate its order granting the motion to dismiss, and remand

for further consideration of downstream issues, including whether Elfar sufficiently pled

his claims’ other elements. We will affirm the court’s orders denying partial summary

judgment and staying discovery.

I.

Because we write principally for the parties, who are familiar with this case’s

factual and legal history, we will set forth only those facts necessary to our analysis.

In 2016, two police officers, defendants Matthew Menosky and Michael Sasso,

stopped Elfar for minor traffic violations in Holmdel, New Jersey. The officers were

equipped with an audio-video recording system. The officers quickly discovered

marijuana in Elfar’s vehicle upon a purported plain-view search and performed a field

sobriety test, the outcome of which the parties dispute. After the test, the officers muted

their recording system, a violation of municipal policy, to discuss probable cause for a

potential arrest. They subsequently arrested Elfar for DWI and related offenses. Officers

detained Elfar to process his charges, though Elfar contends he was held for “at least one

hour” after officers issued his summons. App. 140–41.

Elfar was tried and convicted in Holmdel Municipal Court in February 2017, his

license was suspended, and he was ordered to participate in a remedial course. Elfar filed

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a de novo appeal to New Jersey’s Superior Court, and, in March 2017, Elfar and the

prosecutor’s office entered a consent order partially restoring Elfar’s driving privileges

during the pendency of his appeal. The order permitted Elfar to drive “for business and

family obligations” between 6:00 a.m. and 11:00 a.m. and between 5:00 p.m. and 10:00

p.m. App. 803–04.1 The order remained in place when, in October 2017, the parties

agreed to remand the case to municipal court for retrial in light of newly discovered

evidence. The case was remanded, and Elfar motioned for a new trial under the parties’

agreement. While Elfar’s motion was pending, the prosecutor informed Elfar that

Holmdel’s former police chief—defendant John Mioduszewski—had spoken to the judge

ex parte and wanted the case to “run it’s [sic] course” even though the prosecutor “would

love to resolve” the charges. App. 129.

The Municipal Court granted Elfar’s motion for a new trial under N.J. Mun. Ct. R.

7:10-1, though the record does not contain an order independently vacating Elfar’s

conviction. A new judge was assigned for retrial, Elfar was again convicted in December

2018, and his original sentence was reimposed in place of his consent order. Elfar again

de novo appealed to New Jersey’s Superior Court, which ultimately acquitted Elfar of all

charges in August 2022. The Superior Court held, inter alia, Elfar’s arresting officers

acted without probable cause, the plain view doctrine did not support the warrantless

search, and no reasonable officer could have concluded Elfar was impaired the night of

1

Contrary to the language of the consent order itself, Elfar’s complaint contends

he was permitted to drive for “limited reasons” between 9:00 am. and 5:00 p.m. App.

128. Either way, Elfar pleads the State restricted his ability to drive.

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his arrest. Reflecting on Elfar’s second municipal trial, which had adopted legal rulings

made in the first, the Superior Court opined, “It is not clear how [Elfar] could be granted

a new trial and be bound by the legal rulings made in a trial that was vacated and made

by a Judge who recused herself.” App. 171.

Elfar filed this action in 2022, which consists of § 1983 and common law

malicious prosecution claims against his arresting officers and the former police chief and

a municipal liability claim against defendant Township of Holmdel (“Holmdel”). The

District Court stayed discovery pending dispositive motions and subsequently: (1)

granted appellees’ motion to dismiss, reasoning Elfar failed to plausibly plead (a) the

requisite seizure for malicious prosecution and (b) a basis for municipal liability, and (2)

denied Elfar’s motion for partial summary judgment against Holmdel, which sought to

use non-mutual offensive issue preclusion to bar Holmdel from contesting facts

established in Elfar’s criminal appeal. As relevant to Elfar’s malicious prosecution claim,

the court reasoned the necessary “seizure” for such a claim cannot consist solely of

“having to attend one’s own trial” and “does not include post-conviction [restrictions].”

Elfar, 2024 WL 415691, at *7.

II.2

On appeal, Elfar challenges the court’s orders dismissing his complaint, denying

his motion for partial summary judgment, and staying discovery. Elfar contends the

2

The District Court had jurisdiction under 28 U.S.C. § 1331 and § 1367, and we

have jurisdiction under 28 U.S.C. § 1291.

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court erred in holding (1) Elfar’s mandatory appearances in his first trial were not a

“seizure” sufficient to support a claim for malicious prosecution, (2) Elfar’s driving

restrictions, which remained in effect during his retrial, were not a seizure as they

occurred before his first conviction was purportedly vacated, and (3) Holmdel was not in

privity with Elfar’s municipal prosecutor, barring the court from applying non-mutual

offensive issue preclusion. Elfar also contends the court abused its discretion in staying

discovery.

We review the court’s order granting the motion to dismiss de novo. Black v.

Montgomery Cnty., 835 F.3d 358, 364 (3d Cir. 2016). Under Rule 12(b)(6), we must

deny a motion to dismiss where a complaint contains “sufficient factual matter, accepted

as true, to state a claim to relief that is plausible on its face. A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citations omitted). We

must “accept all factual allegations as true” and “construe the complaint in the light most

favorable to the plaintiff.” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir.

2008) (internal quotation marks omitted) (quoting Pinker v. Roche Holdings Ltd., 292

F.3d 361, 374 n.7 (3d Cir. 2002)).

While we review de novo the court’s order denying Elfar’s motion for partial

summary judgment, see Canada v. Samuel Grossi & Sons, 49 F.4th 340, 345 (3d Cir.

2022), we review its decision not to apply non-mutual offensive issue preclusion for

abuse of discretion, see Jean Alexander Cosms., Inc. v. L’Oreal USA, Inc., 458 F.3d 244,

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248–49 (3d Cir. 2006).

We review the court’s stay of discovery for abuse of discretion. See In re

Orthopedic Bone Screw Prod. Liab. Litig., 264 F.3d 344, 365 (3d Cir. 2001).

III.

This case largely turns on whether Elfar has pled a seizure under the Fourth

Amendment, a requisite element of his § 1983 malicious prosecution claim. DiBella v.

Borough of Beachwood, 407 F.3d 599, 601 (3d Cir. 2005); see also Chiaverini v. City of

Napoleon, 602 U.S. 556, 558 (2024) (“To succeed on such a claim, a plaintiff must show

that a government official charged him without probable cause, leading to an

unreasonable seizure of his person.” (emphasis added) (citation omitted)). If Elfar has

pled a seizure, the court erred in (1) dismissing his § 1983 malicious prosecution claim

without considering the claim’s other elements, (2) holding Elfar’s malicious prosecution

claim could not serve as the basis for his municipal liability claim, and (3) declining to

exercise supplemental jurisdiction over Elfar’s common law malicious prosecution claim

as it had dismissed all federal claims. Because Elfar sufficiently pled a seizure, we will

vacate and remand for reconsideration of these downstream issues. We will affirm the

court’s other orders.

A.

To prevail on a malicious prosecution claim under § 1983, a plaintiff must

separately establish: “(1) the defendant[s] initiated a criminal proceeding; (2) the criminal

proceeding ended in [his] favor; (3) the defendant[s] initiated the proceeding without

probable cause; (4) the defendant[s] acted maliciously or for a purpose other than

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bringing the plaintiff to justice; and (5) [he] suffered deprivation of liberty consistent

with the concept of seizure as a consequence of a legal proceeding.” Zimmerman v.

Corbett, 873 F.3d 414, 418 (3d Cir. 2017) (alteration in original) (internal quotation

marks omitted) (quoting Halsey v. Pfeiffer, 750 F.3d 273, 296–97 (3d Cir. 2014)).

Because the District Court held Elfar failed to plead a seizure and, accordingly, did not

reach malicious prosecution’s other elements, the operative question on appeal is whether

Elfar was seized within the meaning of the Fourth Amendment. Elfar identifies two

potential seizures: (1) his license restrictions and mandatory appearances during his

retrial, and (2) his post-arrest, one-hour detention and mandatory appearances during his

first trial. An embedded issue within Elfar’s first potential seizure is whether

deprivations of liberty suffered during retrial may constitute a seizure.

A seizure generally must occur before conviction. See DiBella, 407 F.3d at 603

(“[T]he Fourth Amendment does not extend beyond the period of pretrial restrictions.”

(emphasis added)); Donahue v. Gavin, 280 F.3d 371, 381 (3d Cir. 2002) (“[C]onsistent

with our language in Johnstone, we conclude that post-conviction incarceration cannot be

a seizure within the meaning of the Fourth Amendment . . . .” (citation omitted)); Torres

v. McLaughlin, 163 F.3d 169, 174 (3d Cir. 1998) (“We conclude that the limits of Fourth

Amendment protection relate to the boundary between arrest and pretrial detention.”

(emphasis added)). Two recent Supreme Court cases leave that requirement undisturbed.

See Manuel v. City of Joliet, 580 U.S. 357, 369 n.8 (2017) (“[O]nce a trial has occurred,

the Fourth Amendment drops out . . . .”); Chiaverini, 602 U.S. at 562–64 (“Under [the

Fourth Amendment], a pretrial detention . . . must be based on probable cause. . . . [A]

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Fourth Amendment malicious-prosecution suit depends not just on an unsupported

charge, but on that charge’s causing a seizure—like the arrest and three-day detention

here.” (emphasis added)).

But deprivations of liberty suffered during retrial, after a defendant’s conviction

has been vacated, also qualify as seizures under the Fourth Amendment. That is, once a

defendant’s conviction is vacated and the government elects to proceed with a new trial,

the conviction has become a legal nullity, and the defendant necessarily returns to a

pretrial status. See Weyant v. Okst, 101 F.3d 845, 854 (2d Cir. 1996) (“Even a conviction

that has been merely vacated, . . . with the matter remanded for a new trial, . . . is ‘null

and void, and the parties are left in the same situation as if no trial had ever taken place.’”

(quoting United States v. Ayres, 76 U.S. (9 Wall.) 608, 610 (1869))). Restrictions

imposed after a conviction is vacated and while retrial is pending are accordingly

“pretrial deprivations of liberty” subject to the principles animating Manuel: “the Framers

drafted the Fourth Amendment to address the matter of pretrial deprivations of liberty,

and the Amendment thus provides standards and procedures for the detention of suspects

pending trial.” 580 U.S. at 369 n.8 (citations omitted) (internal quotation marks

omitted); see also Torres, 163 F.3d at 174 (“[T]he Framers of the Constitution drafted the

Fourth Amendment to quell pretrial deprivations of liberty.”).

Accordingly, Elfar’s deprivations of liberty suffered during retrial might qualify as

a seizure if his conviction was vacated. But it is unclear whether Elfar’s conviction was

vacated pending his retrial. On one hand, it appears no order was entered independently

vacating his conviction before retrial. On the other hand, the local rule under which

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Elfar’s retrial was granted provides that an order granting a retrial “may vacate the

judgment if already entered,” N.J. Mun. Ct. R. 7:10-1, and the New Jersey Superior Court

judge who ultimately exonerated Elfar seemingly believed his conviction had been

vacated pending retrial, see App. 171 (“It is not clear how [Elfar] could be granted a new

trial and be bound by the legal rulings made in a trial that was vacated and made by a

Judge who recused herself.” (emphasis added)). In sum, while no independent legal

ruling vacated Elfar’s conviction, the order granting Elfar’s retrial may have had that

effect. Because we must construe the complaint in the light most favorable to the non-

movant on a motion to dismiss, and the status of Elfar’s conviction pending retrial is

murky, we will presume Elfar’s conviction was vacated, rendering his deprivations of

liberty suffered during retrial a potential seizure.3

Though not all pretrial deprivations of liberty rise to a seizure under the Fourth

Amendment, Elfar’s mandatory appearances combined with his driving restrictions, as

pleaded, rise to a seizure. Merely having to attend one’s trial, without more, is not a

seizure. DiBella, 407 F.3d at 603; see also Gallo v. City of Philadelphia, 161 F.3d 217,

222 (3d Cir. 1998) (holding it was a “close question” whether the following restrictions,

together, amounted to a seizure: “[Plaintiff] had to post a $10,000 bond, he had to attend

3

Our inference that Elfar’s conviction was vacated pending his retrial depends on

our deferential Rule 12(b)(6) review and this case’s uniquely murky procedural history.

We make no holding on whether, as a matter of New Jersey state law, an order granting a

retrial under N.J. Mun. Ct. R. 7:10-1 necessarily vacates a conviction in every case, or on

whether New Jersey’s de novo appeal procedure has any bearing on the status of an

appealed conviction.

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all court hearings including his trial and arraignment, he was required to contact Pretrial

Services on a weekly basis, and he was prohibited from traveling outside New Jersey and

Pennsylvania”). But, where a defendant is both compelled to attend their trial and suffers

onerous travel restrictions, they are seized within the meaning of the Fourth Amendment.

See Black, 835 F.3d at 362–63, 368 (3d Cir. 2016) (finding pretrial restrictions rose to a

seizure where a plaintiff “was released on $50,000 unsecured bail” and was compelled to

fly from her home in “California to Pennsylvania for twelve out of fourteen pre-trial

conferences, . . . . presumably at great expense”). Here, Elfar pleads he was required to

appear in court no less than seventeen times and that his driving restrictions “up-ended”

his life and resulted in threats of arrest despite his compliance with the restrictions. App.

137. Together, these mandatory appearances and onerous travel restrictions rise to a

seizure under Black, Gallo, and DiBella.4

Because Elfar has adequately pled a seizure under the Fourth Amendment, the

District Court erred in declining to consider whether he satisfied malicious prosecution’s

other elements, including whether defendants initiated the criminal proceeding against

Elfar without probable cause. Accordingly, the court also erred in holding Elfar’s

malicious prosecution claim could not serve as the basis for his municipal liability claim

and in declining to exercise supplemental jurisdiction over Elfar’s common law malicious

prosecution claim. Rather than reach these issues, we will remand for the court to

4

Because we hold Elfar’s mandatory appearances and driving restrictions, as

pleaded, rise to a seizure, we need not evaluate whether his deprivations of liberty

suffered during his first trial independently constitute a seizure.

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consider (1) whether Elfar has sufficiently pled malicious prosecution’s other elements,

(2) if he has, whether malicious prosecution might serve as the basis for his municipal

liability claim, and (3) based on the answers to these questions, whether the court should

exercise supplemental jurisdiction over Elfar’s common law malicious prosecution claim.

B.

The District Court properly denied Elfar’s motion for partial summary judgment

against Holmdel based on its decision not to apply non-mutual offensive issue preclusion,

also known as collateral estoppel. When considering whether to give preclusive effect to

a state court judgment, federal courts look to the adjudicating state’s law. Greenleaf v.

Garlock, Inc., 174 F.3d 352, 357 (3d Cir. 1999). In New Jersey, in addition to fairness

considerations, “there are five identified conditions precedent to the application of the

collateral estoppel doctrine: . . . (1) the issue to be precluded is identical to the issue

decided in the prior proceeding; (2) the issue was actually litigated in the prior

proceeding; (3) the court in the prior proceeding issued a final judgment on the merits;

(4) the determination of the issue was essential to the prior judgment; and (5) the party

against whom the doctrine is asserted was a party to or in privity with a party to the

earlier proceeding.” N.J. Div. of Youth & Fam. Servs. v. R.D., 23 A.3d 352, 368 (N.J.

2011) (internal quotation marks omitted) (quoting Olivieri v. Y.M.F. Carpet, Inc., 897

A.2d 1003, 1009 (N.J. 2006)).

The District Court held condition five was not satisfied as Holmdel was not in

privity with the municipal prosecutor in Elfar’s prior criminal proceeding—i.e., the

prosecutor was not Holmdel’s “virtual representative,” allowing Holmdel to “control” the

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litigation. Allen v. V&A Bros., 26 A.3d 430, 445 (N.J. 2011) (citation omitted). This

holding was not an abuse of discretion. As the court reasonably concluded, although

Holmdel employed the municipal prosecutor, she was not Holmdel’s virtual

representative. Her client was the State of New Jersey, see Matter of Segal, 617 A.2d

238, 244 (N.J. 1992) (“[T]he State is the municipal prosecutor’s client . . . .”), and New

Jersey had divergent interests from Holmdel as a potential § 1983 claim posed no danger

to New Jersey given its state immunity, see Will v. Mich. Dept. of State Police, 491 U.S.

58, 66 (1989) (“Section 1983 . . . does not provide a federal forum for litigants who seek

a remedy against a State for alleged deprivations of civil liberties.” (emphasis added)).

The same is true for the county prosecutor who prosecuted the case against Elfar on

appeal. See Coleman v. Kaye, 87 F.3d 1491, 1505 (3d Cir. 1996) (“When [New Jersey]

county prosecutors engage in classic law enforcement and investigative functions, they

act as officers of the State.”). Accordingly, we will affirm the court’s denial of Elfar’s

motion for partial summary judgment.

C.

The District Court did not abuse its discretion in staying discovery pending the

resolution of dispositive motions. District courts retain broad discretion to manage the

docket and resolve discovery disputes. See In re Fine Paper Antitrust Litig., 685 F.2d

810, 817 (3d Cir. 1982) (“[M]atters of docket control and conduct of discovery are

committed to the sound discretion of the district court.”). And courts may reasonably

stay discovery pending a motion to dismiss where the motion may render discovery

futile. See Iqbal, 556 U.S. at 686 (“Because respondent’s complaint is deficient under

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Rule 8, he is not entitled to discovery, cabined or otherwise.”). Because the court stayed

discovery pending dispositive motions to conserve judicial resources, it acted within its

discretion, and we will affirm these orders.

IV.

For the foregoing reasons, we will vacate the court’s order granting the motion to

dismiss and remand for further consideration on whether (1) Elfar has sufficiently pled

malicious prosecution’s non-seizure elements under § 1983, (2) malicious prosecution

might serve as a basis for municipal liability, and (3) the court should exercise

supplemental jurisdiction over Elfar’s common law malicious prosecution claim. We

will affirm the court’s orders denying the motion for partial summary judgment and

staying discovery.

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Krause, Circuit Judge, concurring.

I agree with my colleagues that the District Court erred in dismissing the

complaint, given that it sufficiently pleads a pretrial deprivation of liberty that constitutes

a “seizure” for purposes of a Fourth Amendment malicious-prosecution claim. I write

separately, however, to bring clarity to two issues implicated here, both of which have

clear resolutions that flow neatly from our existing case law and bedrock constitutional

principles.

First, because “the Fourth Amendment does not extend beyond the period of

pretrial restrictions,” DiBella v. Borough of Beachwood, 407 F.3d 599, 603 (3d Cir.

2005) (emphasis added), deprivations of liberty suffered while awaiting appeal cannot

satisfy the “seizure” element of a Fourth Amendment malicious-prosecution claim.

Whether the appellate court’s standard of review is de novo, as was the case here, or more

deferential, an appeal is an appeal, so a restriction imposed on a defendant while his

appeal is pending is by definition a “post-conviction” restriction and thus “cannot be a

seizure within the meaning of the Fourth Amendment.” Torres v. McLaughlin, 163 F.3d

169, 174 (3d Cir. 1998); Donahue v. Gavin, 280 F.3d 371, 381 (3d Cir. 2002) (same).

Second, when a new trial is granted in a criminal case, the initial conviction is

vacated as a matter of law, regardless of whether the order explicitly says so. That is

because the Double Jeopardy Clause explicitly prohibits the government from retrying

someone for a crime if their initial conviction remains intact, see U.S. Const. amend. V

(“No person shall . . . be subject for the same offense to be twice put in jeopardy of life or

limb . . . .”), making it “elementary in our law that a person can be tried a second time for

1

an offense” only “when his prior conviction for that same offense has been set aside,”

Burks v. United States, 437 U.S. 1, 9 (1978) (quoting Forman v. United States, 361 U.S.

416, 425 (1960)); North Carolina v. Pearce, 395 U.S. 711, 717 (1969) (explaining that

the Double Jeopardy Clause “protects against a second prosecution for the same offense

after conviction”). The necessary corollary, long recognized by the Supreme Court, is

that an “order granting [a] new trial has the effect of vacating the former judgment, and to

render it null and void, and the parties are left in the same situation as if no trial had ever

taken place in the cause.” United States v. Ayres, 76 U.S. 608, 610 (1869). We, too,

have considered it “settled that the granting of a new trial has the effect of vacating an

existing judgment in the cause.” Allegheny Cnty. v. Maryland Cas. Co., 132 F.2d 894,

896 (3d Cir. 1943). Thus, for purposes of a Fourth Amendment malicious-prosecution

claim, the grant of a new trial wipes the slate clean, effectively resetting the clock to the

pretrial stage.

What that means here is that Elfar could not have been forced to stand for a second

trial, consistent with the Double Jeopardy Clause, if he simultaneously remained

convicted of the offenses for which he was being retried. See U.S. Const. amend. V. Nor

could he have been convicted and sentenced at his retrial unless his initial conviction and

sentence were annulled. See Burks, 437 U.S. at 9; Pearce, 395 U.S. at 717. Thus, Elfar’s

first conviction was vacated as a matter of basic constitutional law once his motion for a

new trial was granted, see Ayres, 76 U.S. at 610; Allegheny Cnty., 132 F.2d at 896,

meaning that the deprivations of liberty he suffered while his retrial was pending were

necessarily pretrial and, hence, cognizable seizures for purposes of his malicious-

2

prosecution claim.

With these understandings and the guidance they may provide on remand, I join

the majority opinion.

3