Petition for Writ of Certiorari — Kenneth J. Rosellini, Petitioner v. Gary N. Wilcox, Individually and in His Official Capacity as Judge, Superior Court, Bergen County, New Jersey, et al.

APPENDIX A

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

No. 22-2610

KENNETH ROSELLINI,

Appellant

v.

GARY WILCOX, In his individual and official capacity;

HON. FRANK LAROCCA, In his individual capacity and

official capacity;

MICHAEL DOBLIN, DDS, In his official capacity;

JUDGE EDWARD TORACK, In his individual capacity;

MARIE LIHOTZ, In her individual capacity;

HANY MAWLA, In his individual and official capacity;

MARIE SIMONELLI, In her individual and official

capacity;

STUART RABNER, In his individual and official capacity!

CARMEN DIAZ-PETTI, In her official capacity!

SUPREME COURT OF NEW JERSEY DISTRICT XI

ETHICS COMMITTEE;

NORMAN KLEIN, In his official capacity!

ROBERT C. PAPA, In his official capacity

(D.N.J. No. 2:20-cv-20101)

SUR PETITION FOR REHEARING

la

Present:

CHAGARES,

Chief Judge,

HARDIMAN,

SHWARTZ, KRAUSE, RESTREPO, BIBAS, PORTER,

MATEY, PHIPPS, FREEMAN, MONTGOMERY-REEVES,

CHUNG, and AMBRO*, Circuit Judges

The petition for rehearing filed by Appellant in the aboveentitled case having been submitted to the judges who

participated in the decision of this Court and to all the

* Judge Ambro’s vote is limited to panel rehearing only.

other available circuit judges of the circuit in regular active

service, and no judge who concurred in the decision having

asked for rehearing, and a majority of the judges of the

circuit in regular service not having voted for rehearing, the

petition for rehearing by the

panel and the Court en banc, is denied.

By the Court,

si L. Felipe Restrepo

Circuit Judge

Dated: April 30, 2025

Sb/cc: All Counsel of Record

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APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 22-2610

KENNETH J. ROSELLINI,

Appellant

v.

GARY WILCOX, In his individual and official capacity?

HON. FRANK LAROCCA, In his individual capacity and

official capacity;

MICHAEL DOBLIN, DDS, In his official capacity;

JUDGE EDWARD TORACK, In his individual capacity;

MARIE LIHOTZ, In her individual capacity;

HANY MAWLA, In his individual and official capacity;

MARIE SIMONELLI, In her individual and official

capacity;

STUART RABNER, In his individual and official capacity;

CARMEN DIAZ-PETTI, In her official capacity;

SUPREME COURT OF NEW JERSEY DISTRICT XI

ETHICS COMMITTEE;

NORMAN KLEIN, In his official capacity;

ROBERT C. PAPA, In his official capacity

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil No. 2-20-CV-20101)

District Judge- Hon. Madeline Cox Arleo

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

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on November 15, 2024

Before: RESTREPO, MONTGOMERY-REEVES, and

AMBRO, Circuit Judges

JUDGMENT

This cause came to be considered on the record from

the United States District Court for the District of New

Jersey and was submitted on November 15, 2024. On

consideration whereof, it is now ORDERED and

ADJUDGED that the District Court’s Orders entered on

October 14, 2021, and July 28, 2022, are hereby AFFIRMED.

Costs shall be taxed against Appellant. All of the above in

accordance with the Opinion of this Court.

ATTEST:

s/Patricia S. Dodszuweit

Clerk

DATED: February 5, 2025

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APPENDIX C

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 22-2610

KENNETH J. ROSELLINI,

Appellant

v.

GARY WILCOX, In his individual and official capacity,’

HON. FRANK LAROCCA, In his individual capacity and

official capacity;

MICHAEL DOBLIN, DDS, In his official capacity;

JUDGE EDWARD TORACK, In his individual capacity;

MARIE LIHOTZ, In her individual capacity,’

HANY MAWLA, In his individual and official capacity,’

MARIE SIMONELLI, In her individual and official

capacity;

STUART RABNER, In his individual and official capacity;

CARMEN DIAZ-PETTI, In her official capacity;

SUPREME COURT OF NEW JERSEY DISTRICT XI

ETHICS COMMITTEE;

NORMAN KLEIN, In his official capacity,’

ROBERT C. PAPA, In his official capacity

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil No. 2-20-CV-20101)

5a

District Judged Hon. Madeline Cox Arleo

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

on November 15, 2024

Before: RESTREPO, MONTGOMERY-REEVES, and

AMBRO, Circuit Judges

(Filed: February 5, 2025)

OPINION*

RESTREPO, Circuit Judge

On December 22, 2020, attorney Kenneth Rosellini

filed a 296-page complaint in federal court against multiple

defendants alleging a sprawling conspiracy to violate his

First and Fourteenth Amendment rights. Included in the

long list of defendants were the Supreme Court of New

Jersey’s District XI Ethics Committee (the “Ethics

Committee”) and two of its members, Norman Klein and

Robert C. Papa (together with the Ethics Committee, the

“Ethics Committee Defendants”), as well as several New

Jersey state court judges (the “Judicial Defendants”) and

other individuals.! At the time he filed the complaint,

Rosellini faced ongoing disciplinary proceedings for openly

refusing to comply with multiple sanctions orders entered in

New Jersey state courts.

The District Court dismissed the claims against the

Judicial Defendants and Ethics Committee Defendants. As

to the claims against the Ethics Committee Defendants, the

District Court abstained under Younger v. Harris, 401 U.S.

6a

37 (1971). The District Court later abstained again on those

same claims when denying Rosellini s motion for relief from

* This disposition is not an opinion of the full Court and,

pursuant to I.O.P. 5.7, does not constitute binding precedent.

1 The Judicial Defendants were Hon. Gary N. Wilcox, Hon.

Stuart Rabner, Hon. Hany A. Mawla, Hon. Marie P.

Simonelli, Hon. Marie E. Lihotz and Hon. Edward V. Torack.

The other defendants were Carmen Diaz-Petti, Hon. Frank

LaRocca and Michael Doblin. None of the claims against

these defendants are at issue in this appeal.

2

the order based on newly discovered evidence. Rosellini

timely appealed both orders and raises only one issuewhether the District Court erred in applying the Younger

abstention doctrine to dismiss the claims against the Ethics

Committee Defendants. Because we find the District Court

did not err in abstaining under Younger, we will affirm both

orders.

1.2

In 2016, Rosellini sought to vacate five orders entered

in a divorce action before the New Jersey Superior Court.

The court denied Rosellini s motion on res judicata grounds

and sanctioned him for “filing a frivolous motion.” App. 315.

On appeal, the New Jersey Appellate Division affirmed and

imposed additional sanctions. Openly refusing to comply,

Rosellini filed a petition for certification to the New Jersey

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Supreme Court challenging the constitutionality of the

snowballing sanctions. That court denied the petition,

granted a motion by the opposing party for attorney’s fees

and imposed further sanctions.

On November 15, 2019, the Ethics Committee filed a

complaint against Rosellini alleging he violated Rule 3.4(c)

and Rule 8.4(d) of the New Jersey Rules of Professional

Conduct (“RPC”) by openly refusing to comply with multiple

court orders. 3 The Ethics Committee held a hearing on

November 20, 2020. On December 22, 2020—before the

Ethics Committee issued its decision—Rosellini filed his

federal complaint. He alleged a

2 Since we write primarily for parties already familiar with

this case, we include only those facts necessary to reach our

conclusion.

3 RPC 3.4(c) states that “[a] lawyer shall not . . . knowingly

disobey an obligation under the rules of a tribunal except for

an open refusal based on an assertion that no valid obligation

exists.” RPC 8.4(d) states that “[i]t is professional

misconduct for a lawyer to . . . engag in conduct that is

prejudicial to the administration of justice.”

3

wide-ranging conspiracy to perpetrate fraud and violate his

First and Fourteenth Amendment rights through

unconstitutional sanctions and retaliatory disciplinary

proceedings.

As to the Ethics Committee Defendants, Rosellini

asked the District Court to declare that (1) New Jersey Court

Rule

1-20-15(h)—which provides for constitutional

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challenges to the proceedings to be raised in a petition for

review to the New Jersey Supreme Court— violates the Due

Process Clause of the Fourteenth Amendment because it

restricts the ability to raise constitutional claims,’ (2) RPC

3.4(c) and RPC 8.4(d) violate the First and Fourteenth

Amendments to the extent they interfere with his right to

free speech and advocacy,’ and (3) RPC 3.4(c) and RPC 8.4(d)

may not be used as retaliation for the exercise of rights

guaranteed by the First and Fourteenth Amendments.

On March 31, 2021, the Ethics Committee

recommended dismissal of the ethics charges

with one member dissenting. Under New Jersey Court Rule

F20-15(e), the Director of the Office of Attorney Ethics

(“OAE”) can appeal the dismissal of an ethics complaint to

the Disciplinary Review Board (“DRB”), which reviews the

decision de novo. The OAE did just that, appealing the

dismissal of the charges against Rosellini.

While the ethics appeal was pending before the DRB,

on October 14, 2021, the District Court granted the motions

to dismiss filed by the Ethics Committee Defendants and

Judicial Defendants in this case. As to the Ethics Committee

Defendants, the District Cour dismissed the claims under

the Younger abstention doctrine because the state

disciplinary proceedings were ongoing with an appeal

pending before the DRB.

(

On April 20, 2022, the DRB issued a decision

reversing the Ethics Committee’s dismissal of the ethics

complaint and imposing a three-month suspension with the

added

4

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condition that Rosellini satisfy the sanctions orders against

him prior to reinstatement. After the DRB issued its

decision, Rosellini, moved to vacate the October 14, 2021.

order dismissing the claims against the Ethics Committee

Defendants and Judicial Defendants.5 On July,28, 2022, the

District Court denied that motion, rejecting Rosellinis

contention

that abstention was no longer appropriate because the DRB’s

decision showed that (1) he lacked an^adequate forum to

raise his constitutional claims in the ethics, proceedings and

(2). the ethics proceedings were brought in bad faith. The only

issue on appeal, is whether the. District. Court erred in

abstaining under Younger from deciding Rosellini’s claims

against the Ethics Committee Defendants in its October 14,

2021 and July 28, 2022 orders.

II.6

t

• 4 .

A. The Younger Abstention Doctrine

‘

»

*

We first address whether the District Court erred in

finding the legal requirements for Younger abstention, were

met. “To promote comity between the national and state

4 The facts available to the District Court when, it abstained

end here,, but Rosellinis state disciplinary proceedings

continued. He petitioned the New Jersey Supreme .Court t

review the DRB’s decision, and the New Jersey Supreme

Court denied that petition on May 16, 2023. On May 19,

2023, the New Jersey, Supreme Court entered an order

censuring Rosellini and instructing him to satisfy the

sanctions .orders previously entered against him. It then

41

f

I *

•

10a

* .

‘

discipline proceedings do not afford him an adequate

opportunity to raise his constitutional claims. But the

Supreme Court—in an almost identical case—held the

opposite. See Middlesex Cnty.

Ethics Comm'n v. Garden State Bar Ass’n, 457 U.S. 423,

435—36 (1982) (“In light of the unique relationship between

the New Jersey Supreme Court and the local Ethics

Committee, and in view of the nature of the proceedings, it

is difficult to conclude that there was no ‘adequate

opportunity’ for [the plaintiff] to raise his constitutional

claims.”). When assessing “whether a federal plaintiff has an

adequate 'opportunity to raise his constitutional

District Court’s decision to abstain from considering the

claims against the Ethics Committee Defendants. See Hi

Tech Trans, LLC v. New Jersey, 382 F.3d 295, 302 (3d Cir.

2004) (holding decision to abstain constitutes final

appealable order). “We exercise plenary review over a trial

court’s . . . determination of whether Younger abstention is

proper.” Smith & Wesson Brands, Inc. v. Att’y Gen. of N.J.,

27 F.4th 886, 890 (3d Cir. 2022) (omission in original)

(quoting Hamilton v. Bromley, 862 F.3d 329, 333 (3d Cir.

2017)).

6

claims,” the proper inquiry is “whether ‘state law clearly bars

the interposition of the constitutional claims.’” Gonzalez v.

Waterfront Comm’n of N.Y. Harbor, 755 F.3d 176, 18 (3d

Cir. 2014) (quoting Moore v. Sims, 442 U.S. 415, 425—26

(1979)) (emphasis omitted). “In making this determination,

12a

we consider whether state law raises procedural barriers to

the presentation of the federal challenges.” Id. (citing Moore,

442 U.S. at 430).

Rosellini faced no procedural barriers here. In fact,

New Jersey’s disciplinary rules provide two avenues for

constitutional challenges to the proceedings. An attorney can

(1) petition the New Jersey Supreme Court for immediate,

interlocutory review upon a showing of irreparable harm

during the proceedings, N.J. Ct. R. D20-16(f)(1), or (2) raise

constitutional challenges in a petition for review after an

adverse decision by the DRB N.J. Ct. R. l-20‘16(f)(2).

Rosellini chose only the second avenue. If anything, Rosellini

limited his own opportunities to raise his constitutional

claims.

Rosellini points to the DRB’s expression of doubt that

he properly raised the constitutional challenges in the ethics

proceeding as proof that he lacks an adequate forum. But as

the District Court noted in its July 2022 Order, “the mere

possibility that the New Jersey Supreme Court may find that

[Rosellini] failed to properly preserve his constitutional

claims does not suggest that New Jersey has erected

procedural barriers that ‘clearly bar’ a party from raising

constitutional claims.” App. 18. Rosellini also contends that

the New Jersey Supreme Court did not “meaningful[ly]

review” and “failed to address ... in any way” his

constitutional arguments. Appellant’s Br. at 14. As proof, he

points to the brevity of the May 16, 2023, order denying his

petition. True, the New Jersey Supreme Court denied

Rosellini’s petition without explanation. But that does not

change the fact that

7

13a

Rosellini had an adequate opportunity to present his

constitutional challenges in the petition. New Jersey erected

no procedural barriers that clearly barred him from raising

the claims. Thus, the legal requirements for Younger

abstention were met.

B. The Bad-Faith Exception to Younger Abstention

Even when the legal requirements for Younger

abstention are met, a district court should not abstain if the

plaintiff shows that “(1) the state proceedings are being

undertaken in bad faith or for purposes of harassment or (2)

some other extraordinary circumstances exist, such as

proceedings pursuant to a flagrantly unconstitutional

statute, such that deference to the state proceeding will

present a significant and immediate potential for irreparable

harm to the federal interests asserted.” Schall v. Joyce, 885

F.2d 101, 106 (3d Cir. 1989) (citing Middlesex, 457 U.S. at

435). The Supreme Court has explained that the bad faith

exception to Younger applies “[o]nly in cases of proven

harassment or prosecutions undertaken by state officials . . .

without hope” of success. Perez v. Ledesma, 401 U.S. 82,

85 (1971).

Rosellini argued that the District Court should have

applied the bad-faith exception to Younger for the first time

in his motion for relief from the October 2021 order. He

contends the District Court erred by abstaining again in the

July 2022 order because “irregularities contained in the DRB

Decision, the New Jersey Supreme Court Orders, and OAE

actions, prove that these ethics proceedings are in bad faith.”

Appellant’s Br. at 26—27. Yet Rosellini has presented nothing

14a

to suggest the proceedings were initiated by the Ethics

Committee Defendants for purposes of retaliation and

without hope of success. Rosellini criticize the DRB’s decision

to suspend his license and the New Jersey Supreme Court’s

denial

8

of his petitions, but these conclusions are not proof of any

irregularity, much less bad faith. The DRB and New Jersey

Supreme Court cited his refusal to comply with valid court

orders as the reason for his suspension—not his filing of this

federal complaint. And in any event, Rosellini challenges the

District Court’s abstention from the claims against the

Ethics

Committee Defendants, not claims against the DRB or the

New Jersey Supreme Court. 7

In sum, Rosellini rehashes challenges to the merits of

the state court sanctions orders and the conclusions reached

by the DRB and New Jersey Supreme Court in the

disciplinary proceedings. Even if meritorious, these

allegations are unrelated to whether the proceedings were

initiated to harass him or without hope of success. Thus, the

District Court properly found that Rosellini failed to allege

sufficient facts to show that the “bad faith” exception to the

Younger doctrine should apply.

III.

For the reasons set forth above, we will affirm the

District Court’s October 14, 2021 and July 28, 2022, orders.

15a

7 In further support of his bad-faith exception argument,

Rosellini cites information that is beside the point. Rosellini

notes that the dissenting opinion to the initial

recommendation by the Ethics Committee references his

federal complaint, but that does not prove that the

proceedings were initiated in retaliation against him for

filing his federal complaint.

He also cites unrelated ethics proceedings against a New

Jersey judge and other attorneys and claims they received

lighter discipline for worse conduct. This all misses the

mark. It is the initiation of the disciplinary proceedings that

must be in bad faith for the exception

to Younger to apply—contentions of an unfair outcome are

irrelevant.

8 Rosellinis August 13, 2024, motion, see 3d Cir. ECF No.

44, is denied as moot

9

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APPENDIX D

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

KENNETH ROSELLINI,

Plaintiff,

Civil Action No. 20-20101

v.

ORDER

GARY WILCOX, et al.,

Defendants.

THIS MATTER comes before the Court by way of Plaintiff

Kenneth Rosellini’s (“Plaintiff’) Motion to Partially Vacate

Order of October 14, 2021, ECF No. 54;

and it appearing that Defendants Hon. Gary N.

Wilcox, Hon. Stuart Rabner, Hon. Hany A Mawla, Hon.

Marie P. Simonelli, Hon. Marie E. Lihotz, Hon. Edward V.

Torack, the Supreme Court of New Jersey District XI Ethics

Committee (the “Ethics Committee”), Norman Klein, and

Robert C. Papa oppose the Motion, ECF No. 55;

and it appearing that this action arises from Plaintiffs

failure to pay allegedly unconstitutional court sanctions

imposed upon him by New Jersey state courts, see generally

Compl.;l

and it appearing that on November 15, 2019, an

attorney disciplinary complaint was filed against Plaintiff,

alleging that Plaintiff violated New Jersey Rules of

Professional Conduct (“RPC”) 3.4(c) and 8.4(d) by failing to

17a

pay court-ordered sanctions against him (the “Ethics

Proceeding”), id. 399;

1 The Court discussed the background of this action at length

in letter orders dated October 14, 2021 and July 28, 2022,

ECF Nos. 28, 59. The Court herein recites only those facts

necessary to resolve the instant Motion.

and it appearing that on December 22, 2020, Plaintiff

filed the instant action seeking, among other things,

declaratory and injunctive relief stating that RPC 3.4(c),

RPC 8.4(d), and the New Jersey Court Rules governing

attorney ethics proceedings unconstitutionally infringe upon

the First Amendment right to the freedom of speech, see id.

at 77-78 (wherefore clause);

and it appearing that on March 31, 2021, the Ethics

Committee recommended dismissal of the ethics charges

against Plaintiff, see June 25, 2021 Rosellini Cert. Ex. A,

ECF No. 20.2;

and it appearing that on June 23, 2021, the New

Jersey Office of Attorney Ethics appealed the decision of the

Ethics Committee to the Disciplinary Review Board (“DRB”)

pursuant to New Jersey Court Rule F20-15(e)(l), see July

12, 2021 Rosellini Cert. Ex. A., ECF No. 26;

and it appearing that on October 14, 2021, this Court

entered a letter order abstaining from Plaintiffs claims

pursuant to Younger v. Harris, 401 U.S. 37 (1971), to the

extent they related to the ongoing Ethics Proceeding, ECF

No. 28 (the October 2021 Order”);2

and it appearing that on April 20, 2022, the DRB issued a

decision finding that Plaintiff should be suspended from the

18a

practice of law for three months, see June 24, 2022 Rosellini

Cert. Ex. A, ECF No. 54.2 at 30-89 (the “DRB Decision”);

and it appearing that on May 10, 2022, Plaintiff filed

a petition with the New Jersey Supreme Court seeking

review of the DRB Decision, see id. at 4-29; and it appearing

that on June 24, 2022, Plaintiff filed the instant Motion,

which asks the Court to vacate the October 2021 Order to the

extent it abstained from claims related to the Ethics

Proceeding;

and it appearing that Plaintiff argues that abstention

is no longer appropriate because the DRB Decision

demonstrates that (1) Plaintiff lacks an adequate forum to

raise constitutional claims

2 The October 2021 Order made additional rulings not

relevant to the instant Motion.

in the Ethics Proceeding; and (2) the Ethics Proceeding was

brought against him in bad faith, see

Pl. Mem., ECF No. 54.1;3

and it appearing that Younger requires the Court to

abstain from cases that would interfere with an ongoing civil

enforcement proceeding that (1) is “judicial in nature”; (2)

“implicate[s] important state interests”; and (3) “afford[s] an

adequate opportunity to raise federal claims,” Malhan v.

Secy U.S. Dep’t of State, 938 F.3d 453, 462 (3d Cir. 2019)

(citing Sprint Commc’ns, Inc, v. Jacobs, 571 U.S. 69, 81-82

(2013)); see also Sprint, 571 U.S. at 79 (holding that attorney

disciplinary proceedings are “enforcement proceedings”

subject to Younger) (citing Middlesex

Cnty. Ethics Comm, v. Garden State Bar Ass’n, 457 U.S. 423,

433-34 (1982));

19a

and it appearing that to determine whether a party

has an adequate opportunity to raise federal claims in a state

proceeding, the Court must ask whether “state law clearly

bars the interposition of the constitutional claims” through

procedural barriers, Gonzalez v. Waterfront Comm’n of N.Y.

Harbor, 755 F.3d 176, 184 (3d Cir. 2014) (citations omitted);

and it appearing that in the October 2021 Order, the Court

held that the Ethics Proceeding provided an adequate forum

because New Jersey Court Rule 1:20-16(f) allowed Plaintiff

to petition the New Jersey Supreme Court for review of any

constitutional issues properly raised during the

administrative stages of the Ethics Proceeding, Oct. 2021

Order at 8;

and it appearing that while Plaintiff has now

petitioned the New Jersey Supreme Court to review his

constitutional claims related-to the Ethics Proceeding, he

contends that he nonetheless lacks an adequate forum

because the DRB expressed “doubt [s] that [Plaintiff] has

properly raised a constitutional challenge within the ethics

proceeding,” Pl. Mem. 21-22; DRB Decision at 49;

3 The Court construes Plaintiffs Motion as a request under

Federal Rule of Civil Procedure 60(b)(2), which permits relief

from a final order based on “newly discovered evidence.” Cf.

Hi Tech Trans, LLC v. New Jersey, 382 F.3d 295’ 302 (3d

Cir. 2004) (explaining that a district court’s decision to

abstain is a final order).

and it appearing that in rendering its decision, the

DRB further clarified that “whether respondent properly

raised a constitutional challenge to the proceeding ... is a

matter for the [New Jersey Supreme] Court to decide,” DRB

Decision at 50;

20a

and it appearing the mere possibility that the New

Jersey Supreme Court may find that Plaintiff failed to

properly preserve his constitutional claims does not suggest

that New Jersey has erected procedural barriers that

“clearly bar” a party from raising constitutional claims;

and it appearing outside the nonbinding “doubts”

expressed by the DRB, Plaintiff has not pointed to anything

suggesting that New Jersey law prevents him from raising

constitutional claims in the Ethics Proceeding,’

and it appearing that the Court therefore finds no

reason to disturb its conclusion that the Ethics Proceeding

provides an adequate opportunity to raise federal claims;

and it appearing that even where the requirements for

Younger abstention are otherwise satisfied, it is

inappropriate to abstain where “the state proceedings are

being undertaken in bad faith or for purposes of

harassment,” Getson v. New Jersey, 352 F. App’x 749, 753

(3d Cir. 2009) (citation omitted);

and it appearing that “[a] prosecution or proceeding is

conducted in ‘bad faith’ for abstention purposes when it is

brought ‘without hope’ of success,” id. (citing Perez v.

Ledesma, 401 U.S. 82, 85 (1971)),’ see also Jaffery v. Atl.

Cnty. Prosecutor’s Off., 695-F. App’x 38, 41 (3d Cir. 2017)

(“‘Bad faith’ in this context generally means that a

prosecution has been brought without a reasonable

expectation of obtaining a valid conviction.”),’

and it appearing that Plaintiff bears the burden to

establish that the “bad faith” exception to Younger applies,

see Getson, 352 F. App’x at 753,’

and it appearing that Plaintiff argues that

“irregularities” in the DRB Decision demonstrate that the

Ethics Proceeding was brought in bad faith, including that

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the DRB (1) imposed a three month suspension on Plaintiff

instead of a lesser punishment; (2) improperly and

unconstitutionally considered Plaintiffs conduct in this

federal lawsuit in rendering its decision; and (3) committed

errors of law with respect to the civil immunity afforded to

members of the Ethics Committee, see PL Br. at 16'20;

and it appearing that despite Plaintiff s disagreement

with the conclusions reached and reasoning employed by the

DRB, Plaintiff has presented nothing to suggest the

proceedings were initiated for purposes of retaliation and

without hope of success in finding that Plaintiff violated

RPCs 3.4(c) and 8.4(c), see Getson, 352 F. App’x at 753'54

(holding that a plaintiffs “challenges [to] the merits” of

conclusions reached in an administrative proceeding “do not

.. . establish that the administrative proceeding was brought

in bad faith”); and it appearing that while Plaintiff

maintains that the enforcement of RPCs 3.4(c) and 8.4(c)

unconstitutionally abridges his freedom of speech, “the

possible unconstitutionality of a statute” does not by itself

justify federal intervention “against good-faith attempts to

enforce it,” Younger, 401 U.S. at 54;

and it appearing that Plaintiff has therefore failed to

establish that the “bad faith” exception to Younger

abstention applies here;

IT IS on this 28th day of July, 2022;

ORDERED that Plaintiffs Motion to Partially Vacate

Order of October 14, 2021, ECF No. 54, is DENIED.

/s Madeline CoxArleo.

MADELINE COX ARLEO

UNITED STATES DISTRICT JUDGE

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APPENDIX E

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

CHAMBERS OF

MADELINE COX ARLEO

UNITED STATES DISTRICT JUDGE

MARTIN LUTHER KING COURTHOUSE

50WALNUT ST. ROOM 4066

NEWARK, NJ 07101

973-297-4903

October 14, 2021

VIA ECF

LETTER ORDER

Re*

Kenneth Rosellini v. Gary Wilcox, et al.

Civil Action No. 20-20101

Dear LitigantsBefore the Court is (1) Defendants Hon. Gary N.

Wilcox’s (“Judge Wilcox”), Hon. Stuart Rabner’s (“Chief

Justice Rabner”), Hon. Hany A. Mawla’s (“Judge Mawla”),

Hon. Marie P. Simonelli’s (“Judge Simonelli”), Hon. Marie E.

Lihotz’s (“Judge Lihotz”), Hon. Edward V. Torack’s (“Judge

Torack” and together with Judge Wilcox, Chief Justice

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Rabner, Judge Mawla, Judge Simonelli, and Judge Lihotz,

the “Judicial Defendants”), the Supreme Court of New

Jersey’s, District XI Ethics Committee’s (the “Ethics

Committee”), Norman Klein’s (“Klein”), and Robert C. Papa’s

(“Papa” and together with the Ethics Committee and Klein,

the “Ethics Committee Defendants”) Motion to Dismiss the

Complaint, ECF No. 7; and (2) Defendant Carmen Diaz­

Petti’s (“Diaz-Petti”) Motion to Dismiss the Complaint, ECF

No. 13. Pro se Plaintiff Kenneth Rosellini (“Plaintiff’)

opposes each Motion. ECF Nos. 10, 17. For the reasons

explained below, the Motions are each GRANTED.

I. BACKGROUND 1

This civil rights action arises from allegedly

unconstitutional court sanctions imposed on Plaintiff, an

attorney admitted to practice law in the State of New Jersey,

in connection with a postjudgment motion Plaintiff filed on

behalf of his client in a divorce proceeding before the New

Jersey Superior Court (the “Divorce Action”). See generally

Compl. Plaintiff began representing Linda Doblin (“Linda”)

in September 2013 in connection with a bankruptcy

proceeding. Id.

351. In 2015, Linda asked Plaintiff to

review the Divorce Action, asserting that she had been the

victim of fraud upon the court perpetrated by her exhusband, nonmoving Defendant Michael Doblin (“Michael”).

Id.

352-56. Plaintiff alleges that he was subjected to

frivolous litigation sanctions after he filed a motion to vacate

certain orders in the Divorce Action. Id.

358-98. When

Plaintiff refused to pay the sanctions, the Ethics Committee

filed a professional ethics complaint against him. Id. 399.

24a

1 These facts are principally drawn from the, Complaint, ECF

No. 1, and the exhibits attached thereto.

A. The Divorce Action

Plaintiff dedicates more than. thalf . of his 84;page

Complaint to a detailed account of the Divorce Action, which

began.17 years before Plaintiff began representing Linda. Id.

77-350. Taken as true, the Complaint alleges that

Michael and, his divorce attorney, nonmoying Defendant

Frank LaRocca , (“LaRocca”), perpetrated an extensive

campaign of fraud upon the Court designed to diminish

Linda’s right to support arid ^custody of the Doblins’ thenminor child, Matthew. Most notably, Plaintiff alleges that in

December 2006, Michael filed, a fraudulent “settlement

agreement” that substantially altered the terms of a

previously entered divorce decree and contained a forgery of

Linda’s signature. Id. ft 190-91, 199*201;, see also id. Ex. O

(the “2006 Settlement”). As a result of,the 2006 Settlement

and other alleged fraudulent representations, primary

physical custody of Matthew was transferred, from Linda to

Michael, id. 199, and substantial financial obligations were

imposed on Linda, ultimately driving her into bankruptcy,

e.g., id. ft 201, 207, 217.

Judge’Torack, a now-retired Superior t Court judge,

presided over the first decade of the Divorce Action. Plaintiff

alleges that in that role, Judge Torack committed a series of

legal errors and improper actions. Among.,,other things,

Plaintiff alleges that Judge Torack (a) relied on1 fraudulent

representations related to Matthew’s medical care to deny

' Linda’s 2004 motion to enforce support, id.

117, 122-32,

135; (b) issued a summons for criminal contempt against

25a

B. Rosellini’s Motion to Vacate

In 2016, Plaintiff appeared on behalf of Linda in the

Divorce Action and filed a motion to vacate five orders

entered between December 2006 and October 2008 on

grounds that the 2006 Settlement was a forgery (the “Motion

to Vacate”). Id.

358 & Ex. GG. Judge Wilcox denied the

motion based on res judicata, though Plaintiff alleges that

the issue of Linda’s allegedly forged signature had never

been previously litigated. Id.

362, 364. Judge Wilcox also

granted Michael’s motion for fees and costs and sanctioned

Plaintiff in the amount of $5087.50 for “filing and pursuing

frivolous litigation,” in violation of New Jersey Court Rule

1:4-8 (“Rule 1:4-8”). Id. H 368.

Plaintiff appealed Judge Wilcox’s merits ruling and

order for sanctions to the Appellate Division. Id.

375.

Judges Lihotz and Mawla heard the appeal and affirmed

Judge Wilcox in a per curiam decision dated July 7, 2017. Id.

376; see also Doblin v. Doblin, No. A-5066-15T3, 2017 WL

2895892 (N.J. Super. Ct. App. Div. July 7, 2017).2 Judge

Lihotz subsequently imposed an additional $2200 in fee

sanctions against Plaintiff. Compl.

379'80 & Ex. HH.

Presiding Judge Simonelli denied Plaintiffs subsequent

motion for reconsideration and assessed another $2200 in

fees and costs. Id.

381-82 & Ex. II. Finally, Plaintiff filed

a petition for certification to the New Jersey Supreme Court,

which was also denied. Id.

387. Chief Justice Rabner

granted Michael’s motion for attorney’s fees and imposed a

further $5000 in sanctions on Plaintiff. Id. 387 & Ex. JJ.

Plaintiff has openly refused to comply with any of the

aforementioned sanction orders. Id. TH 369, 383, 391. He

27a

further maintains that each order amounts to a “calculated

lie” designed to further conceal fraud on the court and

retaliate against Plaintiff for exercising his First

Amendment rights. Id.

377-78, 385, 395.

C. The Ethics Proceeding

On November 15, 2019, the Ethics Committees filed a

complaint against Plaintiff, alleging that Plaintiff violated

New Jersey Rules of Professional Conduct 3.4(c) (“RPC 3.4”)

and 8.4(d) (“RPC 8.4(d)”) by failing to comply with the

sanction orders (the “Ethics Proceeding”). Compl. 399. On

March 31, 2021, the Ethics Committee recommended

dismissal of the ethics charges against Plaintiff, with one

member dissenting. See Supplemental Certification of

Kenneth

2 With respect to Linda’s claim of fraud on the court, the

Appellate Division held:

Although we are satisfied res judicata bars

defendant’s claims, we address her claims of fraud

upon the court to highlight why the trial judge’s

imposition of counsel fees as a sanction for frivolous

litigation was appropriate. Regarding her claim of

fraud upon the court, the law provides:

a party seeking to be relieved from the

judgment must show that the fact of the falsity

of the testimony could not have been discovered

by reasonable diligence in time to offset it at the

28a

trial or that for other good reason the failure to

use diligence is in all the circumstances not a

bar to relief.

Here, defendant had over a decade to bring the alleged

fraud to the court’s attention, and in fact litigated

numerous issues before the trial court, and in one

instance, an appeal before this court, but never

asserted this argument.

Defendant’s financial

circumstances and auditory issues did not prevent her

from litigating these matters through counsel over

this ten-year period. She does not assert the alleged

fraud was only recently discovered, and the eleventh

hour conjuring of the claim supports the trial judge’s

view the claim was without merit.

Doblin, 2017 WL 2895892, at *4-5 (citation omitted).

3 Defendants Papa and Klein are members of the Ethics

Committee. Id.

26, 29.

Rosellini Ex. A, ECF No. 20.2.4 On June 23, 2021, the New

Jersey Office of Attorney Ethics (“OAE”) appealed the

decision of the Ethics Committee to the Disciplinary Review

Board (“DRB”) pursuant to New Jersey Court Rule 1-2015(e)(1). See Reply Certification of Kenneth Rosellini Ex. A,

ECF No. 26. Michael filed a separate notice of appeal on July

1, 2021. Id. Ex. B.

The Ethics Proceeding ostensibly remains pending before the

DRB.

29a

D. The Complaint and Procedural History

Plaintiff initiated this action by filing the five count

Complaint on December 22, 2020. ECF No. 1. Plaintiff sues

Judge Wilcox, Judge Mawla, Judge Simonelli, and Chief

Justice Rabner in both their individual and official

capacities. Compl.

8, 18, 20, 22. Retired Judges Lihotz

and Torack are sued only in their individual capacities. Id.

TfTf 14, 16. Lastly, Plaintiff sues Diaz-Petti and the Ethics

Committee Defendants only in their official capacities. Id.

24, 26-29.

Count I requests declaratory relief against Doblin,

LaRocca, the Judicial Defendants, and the Ethics Committee

Defendants. Id.

422-23. Plaintiff seeks a total of six

declarations related to purported “policies” pursued by the

Judicial Defendants in the Divorce Action and the rules and

procedures governing the Ethics Proceeding.5 Count II seeks

injunctive relief based on an alleged civil conspiracy between

Michael, LaRocca, and the Judicial Defendants. Count II

does not specify the applicable law and vaguely asks the

Court to “enjoinO these defendants from violating the rights

of litigants appearing before the courts of the State of New

Jersey, and abusing the process of law.” Id.

424-30.

Counts III and IV seek monetary damages against Michael,

LaRocca, and the Judicial Defendants in their individual

capacities, pursuant to 42 U.S.C. § 1983 (“Section 1983”) and

the New Jersey Civil Rights Act, N.J.S.A. § 10-6-2

(“NJCRA”).6 Id.

431-43. These counts also request “any

and all injunctive relief against Carmen Diaz-Petti required

to expose and prevent the extent of the unlawful

unconstitutional

conspiracy

committed

by

these

defendants.” Id. at 81, 83 (wherefore clauses). CountV seeks

30a

monetary damages against Michael and LaRocca for

malicious abuse of process. Id.

444’46.

LaRocca answered the Complaint on March 31, 2021.

ECF No. 9. Michael has failed to answer or otherwise

respond to the Complaint, and on July 14, 2021, the Clerk of

Court entered default judgment against Michael pursuant to

Federal Rule of Civil Procedure 55(b)(1). ECF No.

4 Plaintiffs separately filed motion to supplement the

motion record, ECF No. 20, is granted as unopposed. The

Court considers undisputed evidence outside the Complaint

only to the extent it bears on subject matter jurisdiction. See,

e.g., Const. Party of Pa. v. Aichele, 757 F.3d 347, 358 (3d Cir.

2014).

5 Plaintiff specifically asks the Court to declare that (a) state

court officers must guard against fraud on the court and may

not apply “the doctrine of Res Judicata ... to deny an

application to vacate or void a state court judgment based

upon fraud upon the court;” (b) a state court order

sanctioning an attorney “must set forth both the reason for

the sanction and the basis in law upon which the sanction

was issued;” (c) New Jersey Court Rule l-20’15(h) “violates

the due process clause of the Fourteenth Amendment;” (d)

Rule 1-4-8 “violates the First Amendment and ... Fourteenth

Amendment;” (e) RPCs 8.4(d) and 3.4(c) “violate the First

Amendment and . . . Fourteenth Amendment;” and (f) “Rule

L4’8, RPC 8.4(d), RPC 3.4(c), and any inherent power

possessed by state courts, may not be used for purposes of

intimidation or chilling fundamental rights under the First

Amendment [or] . . . Fourteenth Amendment.” Compl. at 7778 (wherefore clause).

31a

6 Plaintiff does not seek monetary damages against the

Judicial or Ethics Committee Defendants in their official

capacities, see Pl. Opp. at 25, 28, ECF No. 10.

27. The Judicial Defendants, Ethics Committee Defendants,

and Diaz-Petti now move to dismiss the claims against them.

ECF Nos. 7, 13.

IL LEGAL STANDARD

In considering a Rule 12(b)(6) motion to dismiss, the

Court accepts as true all of the facts in the complaint and

draws all reasonable inferences in favor of the plaintiff.

Phillips v. Cnty. Of Allegheny, 515 F.3d 224, 233 (3d Cir.

2008). Dismissal is inappropriate simply because “it appears

unlikely that the plaintiff can prove those facts or will

ultimately prevail on the merits.” Id. The facts alleged,

however, must be “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).

The allegations in the complaint “must be enough to raise a

right to relief above the speculative level.” Id. Accordingly, a

complaint will survive a motion to dismiss if it provides a

sufficient factual basis such that it states a facially plausible

claim for relief. Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009).

III. ANALYSIS

Plaintiffs Complaint seeks retrospective damages

against the Judicial Defendants, declaratory and injunctive

relief against the Judicial Defendants, and declaratory relief

against the Ethics Committee Defendants. The Court

addresses each group of claims in turn.

32a

A. Damages Claims Against Judicial Defendants

Plaintiff seeks damages from the Judicial Defendants

arising from their alleged participation in a wide-ranging

conspiracy to conceal fraud upon the court and violate

Plaintiffs civil rights. The Judicial Defendants argue that

they are entitled to judicial immunity from Plaintiffs suit for

damages. The Court agrees.

State court judges are absolutely immune from suit

under Section 1983 or the NJCRA “for monetary damages

arising from their judicial acts.” Gallas v. Supreme Ct. of

Pa... 211 F.3d 760, 768 (3d Cir. 2000).7 Where, as here, a

plaintiff sues a judge for damages, the court must make two

inquiries to determine whether the judge is immune. A judge

is not immune from liability for (1) “nonjudicial actions, i.e.,

actions not taken in the judge’s judicial capacity;” or (2)

“actions, though judicial in nature, taken in the complete

absence of all jurisdiction.” Id. (citing Mireles v. Waco, 502

U.S. 9, 11-12 (1991)). Immunity attaches to judicial acts even

where a judge allegedly acted with improper motives,

Cleavinger v. Saxner, 474 U.S. 193, 200 (1985), or in

furtherance of a conspiracy with private parties, Dennis v.

Sparks, 449 U.S. 24, 27 (1980).

Plaintiff does not dispute that the alleged conduct of

the Judicial Defendants was in a “judicial capacity” but

contends that two conspiratorial actions were “taken in the

complete absence of all jurisdiction.” First, he argues that

Judge Torack acted without jurisdiction when he issued a

summons for criminal contempt against Linda in 2006. Pl.

Opp. at 26. Second, Plaintiff maintains that Judge Wilcox

lacked jurisdiction to order the removal of court records in

December 2013. Id. at 27. The Court is unpersuaded.

33a

7 “[I]t is well settled that courts construe D the NJCRA in

terms nearly identical to its federal government CounterpartSection 1983.” Balice v. United States, No. 17-13601, 2018

WL 3727384, at *4 n.5 (D.N.J. Aug. 6, 2018), affd, 763 F.

App’x 154 (3d Cir. 2019) (citation and quotation marks

omitted); see id. at *5 (dismissing NJCRA claims due to

judicial immunity).

Where a judge “had jurisdiction over the matter before

[him],” actions taken in the course of that proceeding are

entitled to immunity, “even when such acts were in excess of

[the judge’s] jurisdiction.” Figueroa v. Blackburn, 208 F.3d

435, 441 (3d Cir. 2000). Put differently, “where a court has

some subject matter jurisdiction, there is sufficient

jurisdiction for immunity purposes.” Id. at 443-44. Plaintiff

does not dispute that the two challenged actions occurred in

connection with the Divorce Action. Plaintiff also does not—

and cannot—argue that Judges Torack and Wilcox lacked

jurisdiction over the Divorce Action. Consequently, these

defendants had “some subject matter jurisdiction” and are

immune from suit even if the Court accepts Plaintiffs

assertions that they acted beyond the scope of their

authority. 8

Consequently, the Judicial Defendants are absolutely

immune from a suit for damages arising from the conduct

alleged in the Complaint. Counts III and IV are dismissed

with prejudice as to the Judicial Defendants.

B. Claims for Prospective Relief Against Judicial

Defendants

34a

The Judicial Defendants next contend that Plaintiff

lacks standing to pursue his claims for injunctive and

declaratory relief against them.9 Again, the Court agrees.

To establish Article III standing, “a plaintiff must

show (i) that he suffered an injury in fact that is concrete,

particularized, and actual or imminent; (ii) that the injury

was likely caused by the defendant; and (iii) that the injury

would likely be redressed by judicial relief.” TransUnion LLC

v. Ramirez, 141 S. Ct. 2190, 2203 (2021) (citing Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)).

Moreover, a plaintiff must separately demonstrate standing

for each form of relief he seeks. Id. at 2208. “Past exposure

to illegal conduct” does not establish standing to seek

prospective relief absent “continuing, present adverse

effects.” O’Shea v. Littleton, 414 U.S. 488, 495-96 (1974).

Rather, Plaintiff must show a “real or immediate,” i.e.,

nonspeculative, threat of future injury. City of Los Angeles

v. Lyons, 461 U.S. 95, 111 (1983).

The Complaint seeks declaratory or injunctive relief

related to the Judiciary Defendants’ application of res

judicata and imposition of sanctions pursuant to Rule 1-4-8.

The Court is mindful, however, of the relief Plaintiff does not

seek. Plaintiff does not ask the Court to declare invalid or

enjoin either the sanctions against him or any order issued

in the Divorce Action. 10 Compl. 413. He therefore may not

establish standing through the “continuing, present adverse

effects” of those decisions. Instead, Plaintiff challenges a

“policy” allegedly adopted by the New Jersey Judiciary, “that

Res Judicata is a bar to review of a court decision based upon

fraud upon

35a

8 To the extent Plaintiff argues that Judge Torack acted

without any jurisdiction because he issued a summons for

criminal contempt against Linda in municipal court, instead

of initiating criminal contempt proceedings in the Family

Part, Pl. Opp. at 27, the Court disagrees. So long as a judge

had jurisdiction over the underlying proceeding, even

“inexplicable” or “grave” procedural or legal errors related to

a litigant’s alleged contempt of court do not defeat immunity.

Figueroa, 208 F.3d at 445; see also Lacey v. City of Newark,

828 F. App’x 146, 149 (3d Cir. 2020). The Court therefore

need not determine whether Judge Torack committed legal

error.

9 Under limited circumstances, a party may obtain

prospective relief against a judge otherwise entitled to

judicial or sovereign immunity. See Allen v. DeBello, 861

F.3d 433, 439-40 (3d Cir. 2017); see also Ex parte Young, 209

U.S. 123 (1908). As Plaintiff lacks standing, the Court does

not decide whether such relief may be available here.

10 Nor could he, as under the Rooker-Feldman doctrine, this

Court lacks jurisdiction to entertain “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 court, and that an attorney can be sanctioned pursuant

to rules promulgated by the New Jersey Supreme Court for

seeking such a review.” 11 Id. 412. Plaintiff must therefore

show that he is likely to suffer injury caused by a future

application of this “policy.” See Edelglass v. New Jersey, No.

14-760, 2015 WL 225810, at *12 (D.N.J. Jan. 16, 2015), affd

36a

sub nom„ Allen, 861 F.3d at 433 (“[S]tanding to seek [an]

injunction depends on whether [plaintiff] is likely to suffer

future injury from the behavior sought to be enjoined.”).

In Edelglass, the court considered whether parents

involved in child custody disputes before the New Jersey

Superior Court, Family Part, had standing to challenge an

alleged state “policy of denying parents a plenary hearing

when one parent loses custody to the other parent.” Id. at

*11-13. The Court held that parents who currently had

minor children had standing to pursue prospective relief

because “state courts maintained] jurisdiction over [the

parents’] child custody matters,” and, therefore, the parents

were likely to have another similar encounter with the

Family Part in the future. Id. at *12. Here, by contrast,

Plaintiff alleges no facts suggesting an immediate threat

that he will face future sanctions under similar

circumstances. His vague assertion that he will “continue to

advocate and exercise his First Amendment Rights to guard

against fraud upon the court in New Jersey state court

proceedings,” Pl. Opp. at 25, presents, at most, speculation

that his advocacy on behalf of unnamed clients will one day

result in additional sanctions. 12 Such conjecture is

insufficient to obtain Article III standing to pursue forwardlooking relief.

The Court therefore dismisses Counts I and II against

the Judicial Defendants without prejudice for lack of subject

matter jurisdiction.

C. Claim for Declaratory Relief Against Ethics

Committee Defendants

Count I also seeks several declarations related to the

ongoing Ethics Proceeding. Plaintiff specifically asks the

37a

Court to declare that (1) New Jersey Court Rule l’20'15(h)

(“Rule 1-20- 15(h)”) violates the due process clause of the

Fourteenth Amendment because it restricts the ability to

raise constitutional claims in state ethics proceedings; (2)

RPCs 3.4(c) and 8.4(d) violate the First and Fourteenth

Amendments to the extent they interfere with the right to

free speech and advocacy; and (3) RPCs 3.4(c) and 8.4(d) may

not be used as retaliation for the exercise of rights

guaranteed by the First and Fourteenth Amendments.

Plaintiff ostensibly has standing to pursue Count I

against the Ethics Committee Defendants because he pleads

that the allegedly unconstitutional rules and procedures are

presently being deployed against him in the Ethics

Proceedings. See, e.g., Compl.

399-409. Nonetheless,

11 A suit challenging “the underlying policy that governed”

a state court judgment, as opposed to the judgment itself,

does not implicate Rooker-Feldman. Allen, 861 F.3d at 438.

12 Moreover, the Court is unpersuaded that Plaintiff has

demonstrated even a past instance of the allegedly offending

“policy.” A review of the Appellate Division’s ruling on the

Motion to Vacate makes clear that, despite Plaintiffs

characterization of events, the court did not blindly apply res

judicata to “bar . . . review of a court decision based upon

fraud upon the court” or impose sanctions on Plaintiff simply

for “seeking such review.” Rather, the court found sanctions

appropriate because (a) relevant law required a party

seeking relief from judgment to show that an alleged falsity

could not have been timely discovered; (b) Linda did not

allege that she recently discovered the fraudulent nature of

the 2006 Settlement; and (c) Linda waited over a decade to

raise the issue of fraud for the first time, despite litigating

38a

numerous other issues in the Divorce Action during that

period. Doblin, 2017 WL 2895892, at *5. Consequently, the

Motion to Vacate was deemed “per se frivolous by virtue of

the repeated attempts to challenge old orders through

different legal argumentation, without the necessary facts to

support her claims.” Id. at *7.

the Court concludes that abstention is appropriate pursuant

to Younger v. Harris, 401 U.S. 37 (1971).

“Younger requires federal courts to abstain from

deciding cases that would interfere with certain ongoing

state proceedings.” Malhan v. Secy United States Dep’t of

State, 938 F.3d 453, 461 (3d Cir. 2019) (citing Sprint

Commc’ns, Inc, v. Jacobs, 571 U.S. 69, 77’78 (2013)). The

Court applies a two-pronged inquiry to assess whether to

abstain. First, Younger applies to only three types of

proceedings^ “(1) ‘ongoing state criminal prosecutions’; (2)

‘certain civil enforcement proceedings’; and (3) ‘pending civil

proceedings involving certain orders uniquely in furtherance

of the state courts’ ability to perform their judicial

functions.’” Id. (quoting Sprint, 571 U.S. at 78’79). A “stateinitiated disciplinary proceedingt ] against [a] lawyer for [a]

violation of state ethics rules” is among those “enforcement

proceedings” subject to Younger. Sprint, 571 U.S. at 79

(citing Middlesex Cnty. Ethics Comm, v. Garden State Bar

Ass’n, 457 U.S. 423, 433’34 (1982)).

Second, the Court must additionally ask whether the

proceeding (1) is “judicial in nature;” (2) “implicate[s]

important state interests;” and (3) “afford[s] an adequate

opportunity to raise federal claims.” Malhan, 938 F.3d at 462

(citing Sprint, 571 U.S. at 81’82). In the context of a New

Jersey attorney disciplinary proceeding, the Supreme Court

39a

squarely resolved all three of these questions in favor of

abstention, holding that (1) attorney disciplinary

proceedings are “judicial in nature” because they fall under

the auspice of the New Jersey Supreme Court; (2) New

Jersey “has an extremely important interest in maintaining

and assuring the professional conduct of the attorneys it

licenses;” and (3) New Jersey court rules provide a sufficient

opportunity to raise federal claims in a disciplinary

proceeding. Middlesex Cnty. Ethics Comm., 457 U.S. at 43437 &n,15.

Plaintiff principally contends that he lacks an

adequate opportunity to raise constitutional concerns during

the Ethics Proceeding because neither the Ethics Committee

nor the DRB is empowered to consider constitutional issues.

See N.J. Ct. R. l-20-15(h). Still, the applicable court rules

“afford an adequate opportunity” for Plaintiff to assert his

claims. First, an aggrieved party who properly raises and

preserves a constitutional challenge before the Ethics

Committee and DRB may petition the New Jersey Supreme

Court to review the challenge following an adverse decision

by the DRB. N.J. Ct. R. l-20-16(f)(2). Second—and fatal to

Plaintiffs contention that the mere ability to preserve his

arguments for later review is inadequate—an aggrieved

party may petition the New Jersey Supreme Court for

immediate, interlocutory review upon a showing of

irreparable harm. N.J. Ct. R. D20-16(f)(l). Indeed, the

United States Supreme Court highlighted both of these

procedures in determining that Younger abstention was

warranted. Middlesex Cnty. Ethics Comm., 457 U.S. at 436

n.15.

Consequently, the Court abstains from Count I to the

extent it asserts claims against the

40a

Ethics Committee Defendants.

D. Claims Against Diaz-Petti

Finally, the Court will dismiss the Complaint as to

Diaz-Petti, who is named in her official capacity as the

Assistant Commissioner of the New Jersey Department of

Children & Families (“DCF”). Initially, Plaintiffs do not

actually allege any claims directly against Diaz-Petti. See

Compl. H 422-23, 425-26, 433-34, 439-40, 446. Rather, the

wherefore clauses of Counts III and IV merely request “any

and all injunctive relief against Carmen Diaz-Petti required

to expose and prevent the extent of the unlawful

unconstitutional conspiracy” allegedly perpetrated by

Michael, LaRocca, and the Judicial Defendants. Id. at 81, 83.

The Complaint does not allege that Diaz- Petti participated

in the conspiracy against Plaintiff and appears to name her

for the sole purpose of obtaining discovery that would

“expose” other defendants. Plaintiff cites no authority

suggesting he may maintain a complaint against Diaz-Petti

for this purpose.

The Complaint does allege that DCF “whether

intentionally or not” contributed to the success of the alleged

conspiracy between the Judiciary Defendants, Michael, and

LaRocca by failing to investigate that Michael was abusing

his son—during the years before Plaintiff began

representing Linda. Compl.

435. Plaintiffs opposition to

Diaz-Petti’s Motion confirms that such conduct forms the

basis for his purported claims against Diaz-Petti. ECF No.

17, at 12, 17. Manifestly, an “unintentional” contribution

cannot create liability for a civil conspiracy, since an

affirmative “agreement between the parties to inflict a

wrong” is an essential element of such a claim. Adams v.

Teamsters Local 115, 214 F. App’x 167, 172 (3d Cir. 2007).

41a

Regardless, and as discussed above in Section IILB., Plaintiff

lacks standing to pursue prospective relief arising from the

alleged conspiracy.

Accordingly, the Court dismisses the Complaint as to

Diaz-Petti, without prejudice to Plaintiffs right to assert any

timely claims he has standing to pursue.

IV. CONCLUSION

For the reasons stated above, the Judiciary and Ethics

Committee Defendants’ Motion to Dismiss, ECF No. 7, and

Diaz-Pettis Motion to Dismiss, ECF No. 13, are each

GRANTED. Counts I and II are DISMISSED WITHOUT

PREJUDICE for lack of subject matter jurisdiction and

under principles of abstention, as set forth above. Counts III

and IV are DISMISSED WITH PREJUDICE as to the

Judicial Defendants. Plaintiffs purported claims against

Diaz-Petti for an injunction “to expose and prevent” a

conspiracy are likewise DISMISSED WITH PREJUDICE.

SO ORDERED.

/s Madeline CoxArleo.

MADELINE COX ARLEO

UNITED STATES DISTRICT JUDGE

42a