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Argen v. Kessler

United States District Court, D. New Jersey

September 28, 2018

PAUL ARGEN and SURENDER MALHAN,, Plaintiffs,
v.
DONALD KESSLER and GURBIR S. GREWAL,, Defendants.

          OPINION

          KEVIN MCNULTY UNITED STATES DISTRICT JUDGE

         The plaintiffs, Paul Argen and Surender Malhan, seek declaratory and injunctive relief from a June 2015 court order (hereinafter, "Gag Order") by the Honorable Donald Kessler of the Superior Court of New Jersey. Judge Kessler issued that Gag Order in the course of a divorce and custody dispute between Malhan and his ex-wife, Alina Myronova. Plaintiffs have also named the Attorney General of the State of New Jersey, Gurbir Grewal, as a defendant. Plaintiffs initially moved for temporary restraints and a preliminary injunction. I denied the request for temporary restraints but scheduled a hearing on the preliminary injunction, after which I reserved decision. Defendants now move to dismiss the complaint. I consolidated the preliminary injunction motion with the motion to dismiss for purposes of decision. For the reasons explained herein, I will grant defendants' motion to dismiss the complaint in its entirety as to Attorney General Grewal, and insofar as it seeks injunctive relief as to Judge Kessler. In addition, and in the alternative, I deny plaintiffs' motion for a preliminary injunction as moot in light of those dismissals.

         I. Summary[1]

         a. Factual history

         This case stems from a long and contentious divorce and custody dispute in New Jersey family court.[2] Some but not all of the parties here are litigants in that state case. First, there is Surender Malhan himself. Paul Argen, his co-plaintiff, is a reporter who covers family court "abuses" in New Jersey, among other things. (Cplt. ¶ 4.) He has appeared on television and produces digital content for his reporting. (Id.) Donald Kessler, a judge of the Superior Court of New Jersey, Essex County, Family Division, issued the Gag Order currently in dispute. (Id. ¶ 5.) Nancy Sivilli, a judge of the Family Division in Essex County, issued earlier gag orders but later recused herself from Malhan's case. (Id. ¶¶ 16, 26.) Gurbir Grewal is the Attorney General for the State of New Jersey. (Id. ¶ 6.) Alina Myronova is Malhan's ex-wife; in the state court proceedings she has sought full legal and physical custody of both of their children. (Id. ¶ 7.)

         The events relevant to this case begins in February 2011, when the family court awarded custody of the children to Myronova, while granting Malhan limited visitation rights. (Cplt. ¶¶ 11-12.) Later, in June 2012, joint custody was restored. (Id. ¶ 13.) On February 18, 2014, Malhan was interviewed by a reporter regarding his custody battle, and the interview was broadcast on the local television station, WWOR-TV (known as "Channel 9" or "my9"). (Id. ¶ 15.) This interview led to the first gag order, issued by Judge Sivilli on April 4, 2014. (Id. ¶ 16.) She prohibited Malhan from discussing with the media or posting on the internet any material regarding the issues surrounding his divorce or custody proceedings, and ordered him to remove specific parts of a piece he had already posted on a website that criticized the decisions of the court. (Id. ¶¶ 16-17.) Judge Sivilli's order was later amended on May 1, 2014, but the prohibition on posting online or discussing the case with the media remained substantially the same. (Id. (Ex. B).)

         On May 6, 2014, Malhan brought suit in federal court seeking a declaration that Judge Sivilli's gag order was unconstitutional. (Id. ¶ 20.) Judge Wolfson did not act upon Malhan's motion for a temporary restraining order against enforcement of the gag order, relying on the Rooker-Feldman doctrine. (Id.) Malhan sought interlocutory appellate review of Judge Sivilli's gag order in state court, but review was denied. (Id. ¶ 21.)

         In June 2014, Malhan joined with Paul Nichols, an investigative reporter with The Bergen Dispatch, to bring a second federal court action to enjoin enforcement of Judge Sivilli's May 1, 2014 gag order, captioned Nichols v. Sivilli, No. 14-3821 (D.N.J.). Defendants Judge Sivilli and Essex County Superior Court brought a motion to dismiss, which was denied by the Hon. William J. Martini of this Court.[3] Judge Martini noted that Malhan and Nichols alleged in their complaint that Judge Sivilli, when entering her gag order, had failed to analyze whether other, less drastic remedies would effectively mitigate any harm or prejudice resulting from publicity of the issues subject to that gag order. (Id. ¶ 24.) Judge Sivilli then scheduled an evidentiary hearing to weigh the best interests of the children against Malhan's First Amendment rights. That hearing, however, was cancelled. (Id. ¶¶ 25-26.) Granting a motion by Malhan, Judge Sivilli recused herself from further participation in the case, which was reassigned to Judge Kessler.[4] [Id. ¶¶ 26-27.)

         Judge Kessler scheduled a plenary hearing on the Sivilli gag order for June 18, 2015. (Id. ¶¶ 28, 29.) At the hearing, Myronova did not present any witnesses or submit any evidence. (Id. ¶ 30.) After the hearing, Judge Kessler vacated the previous two orders and entered a new order.

         That new order, dated December, 2015 (the Gag Order now at issue) barred both Malhan and Myronova "from speaking with, appearing for an interview, or otherwise discussing any custody information to any reporters, journalists, newscasters or other news media employees or from posting any blogs or information not previously posted or disseminated relating to the children or any custody issue in this case pending a further hearing." (Id. (Ex. A ¶ 1).) It is fair to say that Judge Kessler intended this Gag Order as an interim measure to preserve the status quo while the parties compiled the necessary record regarding the effect of publicity on the children. The Gag Order was explicitly entered "pending a further hearing." (Id.)

         I do not summarize Judge Kessler's statement of reasons, or the facts on which the decision was based. Those confidential matters may be found at ¶ 9-1 pp. 6-18.

         The order contemplated a period of 30 days to obtain a psychological evaluation. Judge Kessler required that Malhan, Myranova, and the children attend evaluations conducted and scheduled by Dr. Ralph Fretz as part of an effort to secure an expert psychological report, based upon which he could make findings and modify the order as needed. (Kessler Decl. ¶¶ 3-4.) Malhan, however, refused to cooperate. Initially, Malhan declined to attend the court-ordered psychological evaluation sessions with Dr. Fretz at all. (Id.) Dr. Fretz notified the court that he was moving out of state and could no longer finish the report for the case, attributing his withdrawal in part to Malhan's failure to cooperate. (Id. ¶ 5.) At a hearing on August 10, 2016, Judge Kessler expressed concern about the resignation of Dr. Fretz and the lack of any psychological evaluation of how publicity about the custody and divorce battle would affect the well-being of the children. (Id. ¶ 6.) He reminded the parties that he could not consider the issue of modifying the restrictions until he had received such an evaluation. (Id. ¶ 7.)

         Adding to Judge Kessler's evident frustration was the difficulty in finding a new psychological expert. One major obstacle was Malhan's insistence on tape recording any interview with any psychologist selected by the court, a condition few psychologists would accept. (Id. ¶ 8.) One psychologist, Dr. Madeleine Milchman, stated that she would permit tape recording. Shortly thereafter, however, she informed the court that she did not wish to participate in the case. (Kessler Decl. ¶¶ 10-11.) The court attempted to engage a psychological expert who had earlier been involved in the case, Dr. Mary Pasternack. Dr. Pasternack informed the court that because of the numerous difficulties she had encountered with Malhan in earlier sessions, she did not wish to participate. (Kessler Decl. ¶ 12.)

         Judge Kessler concluded that further efforts to obtain a joint court-ordered report about the psychological effect of publicity on the children would be futile. At a February 24, 2017 case management conference, Judge Kessler hit on a next-best alternative that did not require the parties to agree: he bypassed the court-appointed expert and entered an order requiring Malhan and Myronova to separately retain their own experts who could provide separate expert opinions for the court's consideration. Those opinions were to include, inter alia, an assessment of "any adverse effect or harm to either of the children by any publicity of this case or discussion with third parties which may came within purview of the children's knowledge." (Id. ¶ 13 8s Ex. C (order).) As of the date of Judge Kessler's Declaration, neither side had complied. (Id. ¶ 14.)

         Meanwhile, back in federal court before Judge Martini, Nichols had amended his complaint to add Judge Kessler as a defendant. (Cplt. ¶¶ 40-43.) Very shortly thereafter, in June 2016, Mr. Nichols passed away. None of Mr. Nichols's business associates or heirs wished to pursue the litigation, and the federal court case was closed. (Id.¶¶ 44-45.) The custody case continued in the Family Division, but the issue of the 2015 Gag Order lay uncontested for some time. (See Id. ¶¶ 46-47.)

         Eventually, Argen, like Nichols a reporter, became interested in the case and expressed a desire to conduct an interview with Malhan about his custody battle. (Id. ¶ 78.) Argen joined Malhan as plaintiff in filing this new action in 2018. It appears that Judge Kessler has now recused himself from the family court proceeding. (Malhan v. Porrino, D.N.J., Civ. No. 16-8889, DE no. 48).[5] The state family court case is now being heard by Judge David Katz.

         b. Procedural history

         On January 23, 2018, Argen and Malhan brought suit seeking to prevent the defendants from enforcing the Gag Order issued by Judge Kessler. (See Cplt.) They immediately made a motion for a preliminary injunction and temporary restraints. (DE no. 4.) I denied the request for temporary restraints but scheduled a hearing on the preliminary injunction on February 20, 2018. (DE no. 5.) At this motion hearing, the parties rested on their papers and did not introduce testimonial evidence. Defendants did claim, however, that part of the reason for the persistence of the Gag Order was Malhan's refusal to participate in a psychological evaluation to determine the potential harm to his children from the publicity of the dispute. On April 6, 2018, I issued a procedural order asking that counsel "report in writing on the progress being made to furnish psychological reports as ordered by Judge Kessler" and consolidated the preliminary injunction motion with the disposition of the present motion to dismiss. (DE no. 16.)

         In response to the procedural order, counsel for plaintiffs filed a declaration explaining the status of the psychological reports, as well as a curriculum vitae of Dr. Lidia Abrams and a transcript of a March 16, 2018 hearing before Judge Kessler. (DE no. 18.) In a letter, the defendants responded to the Court's request and plaintiffs' submissions, stating that "neither Mr. Malhan nor Ms. Myronova has complied with Judge Kessler's order." (DE no. 19 at 1.) They also noted that "Judge Kessler had already previously secured an expert who was to provide such expert opinion" and argued that Malhan's submissions to the court were irrelevant, as they dealt with the issue of hiring a reunification therapist. (Id. at 2.)

         Defendants lay out six arguments as to why the complaint should be dismissed: (1) injunctive relief against Judge Kessler is not available under Section 1983; (2) Judge Kessler is not a proper defendant under Section 1983; (3) Judge Kessler enjoys absolute immunity; (4) the claims are barred by the Rooker-Feldman doctrine; (5) the Court should abstain from hearing the claims under the Younger doctrine; and (6) the claims are not ripe for consideration. [See Def. Br.) I will discuss those issues in the following order.

         In Section II, I briefly set forth the applicable standards of review.

         In Section III, I deal with some threshold grounds for dismissal on iurisdictional or abstention grounds: First I hold that the action should not be dismissed for lack of subject matter jurisdiction under the Rooker-Feldman doctrine (III.a); next I hold that the action should be not be dismissed based on Younger abstention (Ill.b); and then I hold that the action should not be dismissed on ripeness grounds (III.c).

         In Section IV, I discuss the remaining grounds for dismissal. Against a sitting judge, I hold, injunctive relief is unavailable under § 1983 (IV.a.l). Against Attorney General Grewal, I find, no facts suggestive of liability have been pled. (IV.a.2) Finally, I deny the motion for a preliminary injunction as moot in light of the dismissals. (IV.b).

         II. Standards of Review

          Rule 12(b)(1) governs jurisdictional challenges to a complaint. These may be either facial or factual attacks. See 2 Moore's Federal Practice § 12.30(4] (3d ed. 2007); Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). A facial challenge asserts that the complaint does not allege sufficient grounds to establish subject matter jurisdiction. Lincoln Ben. Life Co. v. AEI Life, LLC, 800 F.3d 99, 105 (3d Cir. 2015); Iwanowa v. Ford Motor Co., 67 F.Supp.2d 424, 438 (D.N.J. 1999). A court considering such a facial challenge assumes that the allegations in the complaint are true, and may dismiss the complaint only if it nevertheless appears that the plaintiff will not be able to assert a colorable claim of subject matter jurisdiction. Iwanowa, 67 F.Supp.2d at 438; Cardio-Med. Assoc, Ltd. v. Crozer-Chester Med. Ctr., 721 F.2d 68, 75 (3d Cir. 1983). As to a facial jurisdictional attack, then, the standard is similar to the one that applies to an ordinary motion to dismiss under Rule 12(b)(6).

         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 the favor of the plaintiff. New Jersey Carpenters & the Trustees Thereof v. Tishman Const. Corp. of New Jersey, 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.

         III. Jurisdiction and Abstention

         a. Rooker-Feldman

          Defendants argue that the Court lacks jurisdiction to hear the plaintiffs' claims under the Rooker-Feldman doctrine. (Def. Br. 18.) They describe plaintiffs as impermissibly seeking federal district court review of an adverse order from a state family court proceeding. This case has two plaintiffs, one of whom, Malhan, disputes a ruling against him in the state case, but the other of whom, Argen, is a third parry asserting his rights as a member of the press. The Rooker-Feldman grounds would not in any event apply to plaintiff Argen, who is not a party to the state case. As to Malhan, the doctrine's application is at best doubtful, because the Third Circuit has explicitly reserved the issue of whether it applies to interlocutory state court orders.

         Under the Rooker-Feldman doctrine, [6] district courts are prohibited from exercising jurisdiction over "'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.** Id. (quoting Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005)). Four requirements must be met before the doctrine can apply: "(1) the federal plaintiff lost in state court; (2) the plaintiff complains of injuries caused by the state-court judgments; (3) those judgments were rendered before the federal suit was filed; and (4) the plaintiff is inviting the district court to review and reject the state judgments." Id. (quoting Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 166 (3d Cir. 2010)).

         I first consider Argen, the clearer case. The Third Circuit has held that non-parties to state court litigation-family court litigation, as it happened- were not barred from pursuing claims about the constitutionality of gag orders in federal court. FOCUS v. Allegheny Cty. Court of Common Pleas,75 F.3d 834, 841 n.4 (3d Cir. 1996) ("Under Valenti [v. Mitchell,962 F.2d 288, 298 (3d Cir. 1992)], however, Rooker-Feldman does not prohibit third parties-such as plaintiffs here-from challenging a state court gag order in federal court.").[7]Argen was not a state-court loser at all. It is true that technically, it remains an open issue whether there may be some circumstances under which a non-party's claim can be barred by Rooker-Feldman. See Lance v. Dennis,546 U.S. 459, 466 (2006) (noting that”[t]he Rooker-Feldman doctrine does not bar actions by nonparties to the earlier state-court judgment" when the nonparties could be considered in privity with a party to the state court judgment, but observing that the question of "whether there are any circumstances, however limited, in ...


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