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Abulkhair v. Office of Attorney Ethics

United States District Court, D. New Jersey

May 24, 2017

Aseem A. ABULKHAIR Plaintiff,


          KEVIN MCNULTY United States District Judge

         This matter comes before the Court on the motion (ECF No. 12) of the defendants, the State of New Jersey ("New Jersey") and the Office of Attorney Ethics (the "OAE"; collectively with New Jersey, the "State") to dismiss the Complaint (ECF No. 1) of the plaintiff, Aseem A. Abulkhair, pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons set forth below, the State's motion to dismiss is granted and the Complaint is dismissed in its entirety.

         I. BACKGROUND

         The plaintiff, Aseem A. Abulkhair, is a resident of New Jersey. (Complaint, hereinafter "Compl.", p.l). Mr. Abulkhair brings claims under the United States Constitution and New Jersey statutory and common law against the OAE, "an agency employed by the State of New Jersey as a supervisor who[] is responsible for attorney unethical practice and misconduct" and against New Jersey as the alleged "employer" of the OAE. (Compl. ¶¶ 4-5).

         Mr. Abulkhair alleges that the OAE mishandled the investigation and prosecution of grievances he filed against his former attorney, William T. Smith. (Compl. ¶¶ 13-14) Mr. Abulkhair claimed Smith collected attorney's fees for representing him in three personal injury actions without a written contract, in violation of Rule 1.5c of the Rules of Professional Conduct.[1] Mr. Abulkhair also avers that Smith abandoned certain of these cases, leading to their dismissal for lack of prosecution. (Id. ¶ 13)

         Mr. Abulkhair insists that, based on Smith's conduct, the OAE should have drawn from the New Jersey Lawyers' Fund for Client Protection Fund (the "Fund") to reimburse Mr. Abulkhair for the $10, 753.50 in fees he paid to Smith. Instead, he says, the OAE struck a deal with Smith and only required him to take an educational course. (Id. ¶ 23) Mr. Abulkhair attributes this allegedly inequitable resolution, in part, to the fact that the attorney the OAE appointed to investigate Mr. Abulkhair's grievance, Steven Ross, maintains an office across the street from the office of a corrupt law firm.[2] He also alleges that Ross ignored evidence that Smith admitted to his misconduct during a trial in New Jersey state court. (Id. ¶¶ 18, 25)

         Further, Mr. Abulkhair alleges that Ross discriminated against him based on his race, religion and the "strong language" he used in reference to state court judges. (Id. ¶¶ 64, 78) Mr. Abulkhair alleges that, although he responded to each of Smith's requests for documentary evidence, such as proof of payments to Smith and copies of motion papers in which (Mr. Abulkhair alleges) Smith perjured himself [id. ¶¶ 19, 20), Ross fabricated facts in his report to the OAE on Mr. Abulkhair's grievance. These fabricated facts, Mr. Abulkhair alleges, protected and benefitted Smith. (Id. ¶ 64)

         Mr. Abulkhair says he formally objected to the OAE's handling of his grievance against Smith and demanded that the OAE secure for him reimbursement of the $10, 753.50 he paid to Smith. (Id. ¶ 24) But, he says, another OAE-appointed investigator, Paula Granuzzo, also ignored evidence and neglected to take appropriate action. (Id. ¶ 25) The matter was closed on May 5, 2016. (Id. ¶ 26)

         The primary purpose of this lawsuit seems to be the recoupment of the fees Mr. Abulkhair paid Smith. He alleges that the OAE's "arbitrary action . . . jeopardized his property interest in his legitimate reimbursement and compensation of his loss" and also subjected him to fear of losing his rights to reimbursement and to the burden of filing this lawsuit. (Id. ¶ 65) In his brief in opposition to this motion, Mr. Abulkhair contends he has a right to reimbursement pursuant to Rule 1:28 of the New Jersey Rules of Court. (Abulkhair's Brief in Opposition (ECF No. 13, hereinafter "Opp.") 2)[3]

         Further, Mr. Abulkhair alleges that because the OAE's "actions or inactions and statements within their fabricated reports" implicitly questioned the credibility of Mr. Abulkhair's claims against Smith, the State deprived him of "his reputation as an honest citizen." (Id. ¶ 66)

         Mr. Abulkhair's complaint asserts the following causes of action:[4]

(1) deprivation of his Fourteenth Amendment right to equal protection, in violation of 42 U.S.C. § 1983 ("Section 1983") (Id. ¶¶27-53, 56, 60, 63-67);
(2) deprivation of his Fourteenth Amendment right to due process, in violation of 42 U.S.C. § 1983 (id. ¶¶47-53, 56, 60, 63-67);
(3) conspiracy to deprive Mr. Abulkhair of equal protection under the Fourteenth Amendment, in violation of 42 U.S.C. § 1985 ("Section 1985") (id. ¶¶ 68-71);
(4) race-based discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII") (id. ¶¶ 72-73);
(5) race-based discrimination in violation of the New Jersey law Against Discrimination ("NJLAD") (id.);
(6) religious discrimination in violation of the First Amendment (id. ¶¶ 75-76);
(7) religious discrimination in violation of the NJLAD (id.);
(8) retaliation against Mr. Abulkhair in response to his "strong language" against judges, in violation of the First Amendment (id. ¶¶ 78-79);[5]
(9) intentional infliction of emotional distress (id. ¶ 61); and
(10) negligent infliction of emotional distress (id. ¶¶ 81-84);[6]

         Mr. Abulkhair asks for damages, injunctive relief, and costs. (Id. pp. 16-17)[7]


         The State moves to dismiss only under Rule 12(b)(6) of the Federal Rules of Civil Procedure. I will also apply Rule 12(b)(1), because the State's argument that Eleventh Amendment principles of sovereign immunity bar Mr. Abulkhair's claims implicates the Court's subject matter jurisdiction.

         A. Rule 12(b)(6) Standard

         Rule 12(b)(6) provides for the dismissal of a complaint, in whole or in part, if it fails to state a claim upon which relief can be granted. The defendant, as the moving party, bears the burden of showing that no claim has been stated. Animal Science Products, Inc. v. China Minmetals Corp., 654 F.3d 462, 469 n. 9 (3d Cir. 2011). For the purposes of a motion to dismiss, the facts alleged in the complaint are accepted as true and all reasonable inferences are drawn in favor of the plaintiff. N.J. Carpenters & the Trustees Thereof v. Tishman Const. Corp. of N.J., 760 F.3d 297, 302 (3d Cir. 2014).

         Federal Rule of Procedure 8(a) does not require that a complaint contain detailed factual allegations. Nevertheless, "a plaintiffs obligation to provide the 'grounds' of his 'entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." BellAtl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, the complaint's factual allegations must be sufficient to raise a plaintiffs right to relief above a speculative level, so that a claim is "plausible on its face." Id. at 570; see also Umland v. PLANCO Fin. Serv., Inc., 542 F.3d 59, 64 (3d Cir. 2008). That facial-plausibility standard is met "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) (citing Twombly, 550 U.S. at 556). While "[t]he plausibility standard is not akin to a 'probability requirement'... it asks for more than a sheer possibility." Iqbal, 556 U.S. at 678.

         As the Third Circuit instructed post-Iqbal, "conclusory or 'bare-bones' allegations will no longer survive a motion to dismiss: 'threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.'To prevent dismissal, all civil complaints must now set out 'sufficient factual matter' to show that the claim is facially plausible." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Iqbal, 556 U.S. at 662). "Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Iqbal, 556 U.S. at 662 (citing Twombly, 550 U.S. at 555).

         A plaintiff alleging a conspiracy must plead more than "vague inferences and allegations." Coulter v. Allegheny Cnty. BarAss'n, 496 F.App'x 167, 169 (3d Cir. 2012) (citing Twombly, 550 U.S. at 556). "Bare assertions of joint action or a conspiracy are not sufficient to survive dismissal at the pleading stage." Id. Rather, the plaintiff must "demonstrate[ ] the existence of any concerted effort" among the defendants. Id.

         Mr. Abulkhair is appearing pro se. A pro se complaint is "to be liberally construed, " and, "however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). Nevertheless, it must meet some minimal standard. "While a litigant's pro se status requires a court to construe the allegations in the complaint liberally, a litigant is not absolved from complying with Twombly and the federal pleading requirements merely because s/he proceeds pro se." Thakar v. Tan, 372 F.App'x 325, 328 (3d Cir. 2010) (citation omitted).

         B. Rule 12(b)(1) Standard

         A motion to dismiss for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) may be raised at any time. Iwanowa v. Ford Motor Co., 67 F.Supp.2d 424, 437-38 (D.N.J. 1999). Rule 12(b)(1) challenges are either facial or factual attacks. See 2 JAMES WM. MOORE, MOORE'S FEDERAL PRACTICE § 12.30[4] (3d ed. 2007). The defendant may facially challenge subject matter jurisdiction by arguing that the complaint, on its face, does not allege sufficient grounds to establish subject matter jurisdiction. Iwanowa, 67 F.Supp.2d at 438. Under this standard, a court assumes that the allegations in the complaint are true, and may dismiss the complaint only if it appears to a certainty that the plaintiff will not be able to assert a colorable claim of subject matter jurisdiction. Id.

         I construe the State's argument that it is immune from suit based on the Eleventh Amendment to be a facial challenge to the Complaint's jurisdictional basis. Accordingly, as under Rule 12(b)(6), the Court will take the allegations of the Complaint as true. See Gould Elecs., Inc. v. U.S., 220 F.3d 169, 178 (3d Cir. 2000).

         III. ...

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