United States District Court, D. New Jersey
MCNULTY UNITED STATES DISTRICT JUDGE
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.
case stems from a long and contentious divorce and custody
dispute in New Jersey family court. 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.)
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).)
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.)
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. 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. [Id.
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
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."
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.
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.
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.
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.)
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. ¶¶
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). The state family court case
is now being heard by Judge David Katz.
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.)
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.)
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
Section II, I briefly set forth the applicable standards of
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).
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.
Standards of Review
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).
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.
Jurisdiction and Abstention
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.
the Rooker-Feldman doctrine,  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)).
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.").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