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Nichols v. Sivilli

United States District Court, D. New Jersey

December 19, 2014

PAUL NICHOLS, Plaintiff,
NANCY SIVILLI (in her official capacity), and ESSEX COUNTY SUPERIOR COURT, Defendants.


WILLIAM J. MARTINI, District Judge.

Pursuant to 42 U.S.C. § 1983 and the Declaratory Judgment Act, Bergen County Dispatch Reporter Paul Nichols brings this First Amendment challenge to a gag order issued by Essex County Superior Court Judge Nancy Sivilli.Before the Court is Defendants' motion to dismiss pursuant to FED.R.CIV.P 12(b)(1) and 12(b)(6).For the reasons set forth below, Defendants' motion is GRANTED IN PART and DENIED IN PART.


Plaintiff Paul Nichols is a reporter for the Bergen County Dispatch (Second Amended Complaint "SAC" at ¶4) who brings a First Amendment challenge to a gag order (the "Gag Order") issued by Judge Nancy Sivilli in Myronova v. Malhan, [1] a divorce and custody suit pending in the family division of the Essex County Superior Court.Nichols wishes to interview one of the parties in Myronova v. Malhan, but is unable to because the Gag Order restrains all parties to the litigation from discussing any aspect of the divorce proceedings.

In order to understand Nichols' First Amendment challenge, the Court first must provide a brief overview of the divorce proceedings that are the subject of the Gag Order. In 2011, a New Jersey court granted full child custody to Alina Myronova and stripped all custody rights from her husband, Surrender Malhan, after Myronova alleged that Malhan was an unfit parent. (SAC at ¶ 7).According to the SAC, the state court stripped Malhan of his custody rights on a mere two hours' notice without affording him an opportunity to refute Myronova's allegations.For example, the court prohibited Malhan from cross examining Myronova or presenting physical evidence - such as bank records or video recordings - that would further demonstrate his parental fitness. (SAC at ¶¶ 7-11).The SAC alleges that after the 2011 proceeding, Myronova retained sole custody of the children for sixteen months until she agreed to joint custody in June 2012; during that time, "Malhan was never granted a plenary hearing."(SAC at ¶ 14).

Malhan, along with five other parents, subsequently filed a class action lawsuit in this District that is currently pending before the Honorable Freda Wolfson: Edelglass, et al., v. New Jersey, et al ., No. 3:14-cv-00760-FLW-DEA.The class action suit alleges that the New Jersey family court system fails to provide adequate due process rights to parents in child custody proceedings. (SAC at ¶ 15).In February 2014, a New Jersey affiliate of a major news broadcasting company interviewed Malhan and two other Edelglass plaintiffs regarding their experiences in family court and their allegations that the family court deprived them of their constitutional rights. (SAC at ¶ 16).In response, Myronova initiated proceedings against Malhan, which resulted in Judge Sivilli entering the Gag Order. (Def's Reply at 4).The Gag Order reads, in pertinent part:

All parties are hereby enjoined and restrained without prejudice from speaking with, appearing for an interview, or otherwise discussing, the parties' marriage, their pending divorce, the within litigation, or the parties children or making any derogatory or negative statements about the other parties to any reporters, journalists, newscasters, or other agents/employees of newspapers or other media outlets on the grounds that it is not in the best interest of the children to have the parties' divorce litigation discussed in a public forum or to have public disparaging statements made about any party by the other party. (SAC Ex. A).

In addition to restricting their ability to discuss their divorce or related litigation with other individuals, the Gag Order also prohibits the parties from conveying such information on social media.The Gag Order also instructs Malhan to remove all divorce-related information from his blog. ( See Id .)

In May 2014, Malhan filed for a temporary restraining order in Edelglass seeking to enjoin enforcement of the Gag Order.In a May 8, 2014 Order, Judge Wolfson expressed her view that the Gag Order "raises serious constitutional concerns" and that Judge Sivilli "failed to meaningfully weigh Plaintiff's First Amendment rights."She nonetheless denied Malhan's motion because the relief he sought was barred by the Rooker-Feldman doctrine. ( Edelglass, ECF No. 11).Malhan suffered another defeat when the Appellate Division of the Superior Court of New Jersey denied his application for an interlocutory appeal of the Gag Order. (SAC at ¶ 23).

After Malhan failed to enjoin enforcement of the Gag Order, Nichols filed the instant action in this Court.[2] Nichols wishes to interview Malhan about his experiences in family court, which according to Nichols, "are a matter of public interest."(SAC at ¶ 31-32).Nichols contends that that he is unable to interview Malhan because the Gag Order restricts Malhan from saying anything that relates to his divorce proceedings. (SAC at ¶ 33).The SAC alleges that Judge Sivilli entered the Gag Order without conducting any meaningful weighing of the First Amendment interests at stake.According to Nichols, Judge Sivilli did not hold a plenary hearing and made no specific findings as to why a gag order was required in this particular case; instead, she issued the Gag Order "based on a generalized finding that publicity in family court is not in the best interests of children."(SAC at ¶ 19.)

Plaintiff filed the SAC on August 7, 2014.ECF No. 8.It consists of the same allegations as the initial Complaint, but names Judge Sivilli and the Essex County Superior Court as Defendants. Id. Specifically, Nichols seeks (1) a declaratory judgment that the Gag Order is unconstitutional, and (2) an injunction prohibiting Defendants from enforcing the Gag Order. Id. at 4.Defendants now move to dismiss.ECF. No. 13.


Federal Rule of Civil Procedure 12(b)(1) provides for the dismissal of a complaint for lack of subject matter jurisdiction.Fed. R. Civ. P. 12(b)(1).There are two types of challenges to subject-matter jurisdiction: (1) facial attacks, which challenge the allegations of the complaint on their face; and (2) factual attacks, which challenge the existence of subject-matter jurisdiction, quite apart from any pleadings. Mortensen v. First Fed. Sav & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977).In reviewing a facial attack, like the one in this case, the court must consider the allegations of the complaint in the light ...

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