United States District Court, D. New Jersey
August 24, 2005.
EDWARD J. MIERZWA and PATRICIA A. MIERZWA, Plaintiffs,
CITY OF GARFIELD; CITY OF FAIR LAWN; CITY OF PEQUANNOCK; ANTHONY BLACKFELD; RICHARD URAM; GRUBER & COLABELLA, P.C.; HEADLANDS MORTGAGE COMPANY; GLEN MATTIE; ROSE ANNE MERENDINO; THOMAS J. MIERZWA; JANE MIERZWA; TODD MOSBY; PETERPAUL, CLARK & CORCORAN, PC; RONALD SCHWARTZ, ESQ.; ROBERT SHIKHMAN; TRACI SHIKHMAN; JOHN DOE INSURANCE COMPANY; STATE FARM INSURANCE COMPANY; ESTATE OF JACOB TELESH; VALLEY NATIONAL BANK; JAMES B. ZANGARA; UNITED STATES OF AMERICA, and STATE OF NEW JERSEY, Defendants.
The opinion of the court was delivered by: JOHN BISSELL, Chief Judge, District
This action comes before the Court on motions by the Plaintiffs
and motions to dismiss by Defendants the United States and the
State of New Jersey.
FACTS AND BACKGROUND
This case is brought by Plaintiffs Mr. Edward J. Mierzwa and
his wife, Mrs. Patricia A. Mierzwa, against the United States of
America, the State of New Jersey, the City of Garfield, the City
of Pequannock, the City of Fair Lawn, as well as several other
public and private defendants, pursuant to 42 U.S.C. § 1983.
Plaintiffs filed this Complaint on October 27, 2004.
This case concerns events which occurred after the Plaintiffs
filed an earlier lawsuit entitled Edward Mierzwa, et al. v.
State of New Jersey, et al., Docket No. 2:04-cv-721 ("the '721
case"). On March 5, 2004, this Court entered an Order dismissing
the claims against many of the defendants in the '721 case.
Thereafter, the Court denied the Plaintiffs' motion for
reconsideration. Plaintiff filed an interlocutory appeal of that
Order with the United States Court of Appeals for the Third Circuit. On September 23, 2004, the Court of Appeals dismissed
Plaintiff's appeal for lack of jurisdiction. On December 27,
2004, this Court dismissed the remaining counts in the '721 case.
In this case, the Complaint refers to events beginning on
February 19, 2004, the day after Plaintiffs filed the Complaint
in the '721 case. Plaintiffs allege that defendants Robert,
Saulius and Traci Shikhman "initiated chaotic police activity" on
February 19, 2004. Compl., First Count, ¶ 2. The Shikhman's
allegedly initiated this "chaotic police activity" in conjunction
with Defendants City of Garfield, City of Fair Lawn, City of
Pequannock and the State of New Jersey. See id. On that same
date, the State of New Jersey and others allegedly "committed
acts of gross negligence and outrageous conduct against
Plaintiff(s)." Compl., First Count, ¶ 3.
Plaintiffs further allege that on October 29, 2004, Plaintiff
Edward J. Mierzwa delivered a copy of the pleadings in the
earlier case to the home of Defendant Saulius Shikhman. Compl.,
First Count, ¶ 16. On November 2, 2004, Defendants Shikhman, the
State of New Jersey, and the City of Pequannock allegedly filed a
notice in lieu of complaint citing Plaintiff for trespassing.
Id. at ¶ 17.
In addition to the foregoing allegations, Plaintiffs seemingly
allege misconduct against this Court as well as the Court of
Appeals for the Third Circuit in connection with the disposition of Plaintiffs' Complaint and subsequent appeal in the
earlier case. See Compl., First Count, ¶¶ 1, 5, 7, 9-10, 12-15.
It should be noted that the Second Count of the Amended
Complaint is a common law loss of consortium claim on behalf of
Plaintiff Patricia A. Mierzwa.
On October 29, 2004, Plaintiffs filed a motion for change of
venue. Thereafter, on December 8, 2004, Plaintiffs filed a motion
for default judgment against the Defendants. On December 14,
2004, the State of New Jersey filed a motion to dismiss the
Complaint and all cross claims. On December 28, 2004, the
United States of America filed a motion to dismiss for lack of
jurisdiction. These motions to dismiss will also be addressed.
I. Standard for Motions for transfer of venue pursuant to
28 U.S.C. § 1404(a)
In a motion to transfer venue pursuant to 28 U.S.C. § 1404(a),
the Court is guided by the following:
For the convenience of the parties and witnesses, in
the interest of justice, a district court may
transfer any civil action to any district or division
where it might have been brought.
28 U.S.C. § 1404(a). Thus, the decision whether to transfer a
given action is in the sound discretion of the trial court. Cadapult Graphic Sys. v. Tektronix, Inc., 98 F. Supp. 2d 560
564 (D.N.J. 2000).
In this case, the Plaintiffs have not provided any reason for a
change of venue. Therefore, this Court is not persuaded that a
change of venue is appropriate. For that reason, Plaintiffs'
motion is denied.
II. Plaintiffs' Motion for Default Judgment
Plaintiffs seek entry of default judgment against the
Defendants pursuant to Fed.R.Civ.P. Rule 55(b)(2):
If the party against whom judgment by default is
sought has appeared in the action, the party . . .
shall be served with written notice of the
application for judgment at least 3 days prior to the
hearing on such application. If, in order to enable
the court to enter judgment or to carry it into
effect, it is necessary to take an account or to
determine the amount of damages or to establish the
truth of any other matter, the court may conduct such
hearings or order such references as it deems
necessary. . . .
Default judgment may be entered without an evidentiary hearing
if the plaintiff has presented to a court "definite figures
contained in the documentary evidence or in detailed affidavits"
which are an adequate substitute for live testimony. See
Transportes Aereos de Angola v. Jet Traders Investment Corp.,
624 F. Supp. 264, 266 (D. Del. 1985) (citing Dundee Cement Co.
v. Howard Pipe & Concrete Products Inc., 722 F.2d 1319, 1323
(7th Cir. 1983)). A court may also award such damages when the
motion for entry of default judgment specifies the amount requested and
the defendant does not question that amount. See id. (citing
United States v. DeFrantz, 708 F.2d 310, 312-13 (7th Cir.
1983); Southern General Ins. Co. v. O'Keefe, 275 F. Supp. 107,
109 (D. Md. 1967)).
In this case, no default has been entered, despite the fact
that the Plaintiffs have requested the clerk to file a default
against the Defendants. Here, Plaintiffs have not provided any
evidence or proof as to why a default or a default judgment
should be entered against the Defendants. Therefore, Plaintiffs'
motion for a default judgment is denied.
III. Motion to Dismiss by the United States
The United States is immune from suit and therefore its motion
to dismiss must be granted. The Supreme Court has stated:
It is elementary that the United States, as
sovereign, is immune from suit save as it consents to
be sued A A A, and the terms of its consent to be
sued in any court define that court's jurisdiction to
entertain the suit.
United States v. Mitchell, 445 U.S. 535
, 538 (1980) (quoting
United States v. Sherwood, 312 U.S. 584, 586 (1941)).
Furthermore, a waiver of sovereign immunity "cannot be implied
but must be unequivocally expressed." United States v. King,
395 U.S. 1
, 4 (1969). In the absence of clear congressional
consent, then, "there is no jurisdiction . . . in any . . . court
to entertain suits against the United States." Sherwood,
312 U.S. at 587-588. There is no evidence in this case of clear congressional
consent to suit; therefore, this Court does not have jurisdiction
to hear this case as against the United States. For that reason,
the motion to dismiss by the United States is granted.
IV. Motion to Dismiss by the State of New Jersey
The State of New Jersey moves to dismiss claims asserted
against it principally on the argument that it is not a "person"
as defined by 42 U.S.C. § 1983 and thereby not amenable to suit
here. See New Jersey's Br. at 4. The Court agrees.*fn1
Plaintiffs' procedural due process claims are apparently
predicated on 42 U.S.C. § 1983. Section 1983 provides, in
pertinent part, that "[e]very person who, under color of any
statute . . . of any State . . . subjects . . . any citizen of
the United States . . . to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action in law. . . . 42 U.S.C. § 1983 (Emphasis added.). The Supreme Court, in Will
v. Michigan Dep't of State Police, 491 U.S. 58 (1989), held,
however, that a state or an official of a state is not a "person"
within the meaning of 42 U.S.C. § 1983. See Will,
491 U.S. at 71. This Court has followed Will's holding. See Jiminez v.
New Jersey, 245 F. Supp. 2d 584, 586 n. 2 (D.N.J. 2003)
("Plaintiff's claims against the State of New Jersey and the New
Jersey Division of State Police fail under § 1983. The Supreme
Court expressly held that the term `person' in the statute does
not include the state or state officials acting in their official
capacity."). Because Federal Rule of Civil Procedure 12(b)(6)
authorizes a court to dismiss a claim on the basis of a
dispositive issue of law, (see Neitzke v. Williams,
490 U.S. 319, 326 (1989) (citing Hishon v. King & Spalding, 467 U.S. 69,
73 (1984)); Conley v. Gibson, 355 U.S. 41, 45-46 (1957)), the
Court dismisses Plaintiffs' claims against the State of New
Jersey as it is not a "person" under section 1983. Furthermore,
the Second Count of the Complaint must be dismissed because
Patricia Mierzwa's claim of loss of consortium is predicted on
Count One, which must be dismissed.
For the foregoing reasons, the Plaintiffs' motion for change of
venue is DENIED; and the Plaintiffs' motion for default judgment
is DENIED. Furthermore, the United States' motion to dismiss is GRANTED. The State of New Jersey's motion to dismiss
is also GRANTED. All claims and crossclaims against those two
Defendants are dismissed.