United States District Court, D. New Jersey
Aseem A. ABULKHAIR Plaintiff,
THE OFFICE OF ATTORNEY ETHICS AND STATE OF NEW JERSEY, Defendants.
MCNULTY United States District Judge
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.
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. ¶¶
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. Mr. Abulkhair also avers that Smith
abandoned certain of these cases, leading to their dismissal
for lack of prosecution. (Id. ¶ 13)
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. He also alleges
that Ross ignored evidence that Smith admitted to his
misconduct during a trial in New Jersey state court.
(Id. ¶¶ 18, 25)
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)
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)
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)
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)
Abulkhair's complaint asserts the following causes of
(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.
(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")
(6) religious discrimination in violation of the First
Amendment (id. ¶¶ 75-76);
(7) religious discrimination in violation of the NJLAD
(8) retaliation against Mr. Abulkhair in response to his
"strong language" against judges, in violation of
the First Amendment (id. ¶¶
(9) intentional infliction of emotional distress
(id. ¶ 61); and
(10) negligent infliction of emotional distress (id.
Abulkhair asks for damages, injunctive relief, and costs.
(Id. pp. 16-17)
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
Rule 12(b)(6) Standard
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).
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.
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).
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
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).
Rule 12(b)(1) Standard
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 (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.
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).