United States District Court, D. New Jersey
action grows out of the dissolution of a business venture
between longtime friends, Jerry Somerset and Joseph Elam. Mr.
Somerset sues under the Americans With Disabilities Act
("ADA''), 42 U.S.C. § 12101 et seq..
Somerset, who is vision-impaired, alleges that he made the
down payment on a van for Elam to drive in connection with
their floor refurbishing business. Elam, he says, used the
van in another business, in violation of their agreement to
share and share alike.
sued Elam in state court; the matter went to trial; and
judgment was entered in favor of Elam. Somerset v. Elam, No.
DC-06311-15 (N.J. Superior Court, Law Division, Special Civil
Part) (the "State Court Action"). Now Somerset has
brought suit in federal court against the State of New
Jersey; the Hon. Frank Covello, J.S.C., who presided in the
State Court Action; Lawrence D. Eichen, Elam's attorney
in the State Court Action; Joseph Elam; Strategic Delivery
Systems (a/k/a SDSR, the Healthcare Delivery Specialists)
("SDSR"), seemingly the other business in which
Elam used the van; and Partners Pharmacy LLC.
this Court are motions to dismiss the complaint for lack of
jurisdiction or failure to state a claim, filed by Eichen
(ECF no. 8); the State and Judge Covello (ECF no. 24); and
Partners Pharmacy (ECF no. 25). Partners Pharmacy's
motion also includes an application to vacate default. For
the reasons stated herein, the motions will be granted.
LEGAL STANDARD ON MOTION TO DISMISS
motions, in part, are motions to dismiss the complaint for
lack of jurisdiction under Fed.R.Civ.P. 12(b)(1). Rule
12(b)(1) challenges may be either facial or factual attacks.
See 2 Moore's Federal Practice § 12.30
(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,
Iwanowa, 67 F.Supp.2d at 438. A court considering
such a facial challenge assumes that the allegations in the
complaint are true. Cardio-Med. Assoc, Ltd. v.
Crozer-Chester Med. Ctr., 721 F.2d 68, 75 (3d Cir.
1983); Iwanowa, 67 F.Supp.2d at 438. "In
reviewing a facial attack, the court must only consider the
allegations of the complaint and documents referenced therein
and attached thereto, in the light most favorable to the
plaintiff." Lincoln Ben. Life Co. v. AEI Life,
LLC, 800 F.3d 99, 105 (3d Cir. 2015) (citing Gould
Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir.
the Rule 12(b)(1) component of the defendants' motions
relies only on the Complaint and documents properly
considered on a Rule 12(b)(6) motion to dismiss, I treat it
as a facial challenge. I will not weigh the evidence, but
will construe the allegations in the light most favorable to
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. Hedges
v. United States, 404 F.3d 744, 750 (3d Cir. 2005). In
deciding a Rule 12(b)(6) motion, a court must take the
allegations of the complaint as true and draw reasonable
inferences in the light most favorable to the plaintiff.
Phillips v. County of Allegheny, 515 F.3d 224, 231
(3d Cir. 2008).
Rule of Civil 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."
Bell Atl 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
the plaintiff, like Mr. Somerset here, is proceeding pro
se, the 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, "pro se
litigants still must allege sufficient facts in their
complaints to support a claim." Mala v. Crown Bay
Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013).
"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 Fed.Appx.
325, 328 (3d Cir. 2010) (citation omitted).
Consideration of Complaint exhibits and State Court pleadings
on motion to dismiss
Complaint and the motions to dismiss rely on matters that
are, strictly speaking, extrinsic to the pleadings. Mr.
Somerset's Complaint attaches three letters; one of the
defense motions attaches certain filings from the prior State
Court Action; and Somerset's reply to Partners Pharmacy
attaches part of a transcript from the State Court Action.
Both sides' attachments are properly considered on a
motion to dismiss.
to the Complaint as exhibits are three letters: one from the
U.S. Department of Justice, Civil Rights Division, and two
from the United States Attorney for this District. (ECF no. 1
at 8-10) Those letters concern Mr. Somerset's complaints
about the conduct of Judge Covello and Mr. Elam in the prior
State Court Action.
considering a Rule 12(b)(6) motion is generally confined to
the allegations of the complaint, but it may also consider
authentic documents attached or integral to the complaint:
Although [the rule against considering extrinsic documents
is] phrased in relatively strict terms, we have declined to
interpret this rule narrowly. In deciding motions under Rule
12(b)(6), courts may consider "document[s] integral to
or explicitly relied upon in the complaint," In re
Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426
(3d Cir. 1997) (emphasis in original), or any
"undisputedly authentic document that a defendant
attaches as an exhibit to a motion to dismiss if the
plaintiffs claims are based on the document," PBGC
v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir.
In re Asbestos Products Liability Litigation (No.
VI), 822 F.3d 125, 134 n.7 (3d Cir. 2016). See also
Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014);
In re Burlington Coat Factory, 114 F.3d at 1426);
Pension Ben. Guar. Corp. v. White Consol. Indus.,
Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). "The
rationale underlying this exception is that the primary
problem raised by looking to documents outside the
complaint-lack of notice to the plaintiff-is dissipated
'[w]here plaintiff has actual notice ... and has relied
upon these documents in framing the complaint.*" In
re Burlington, 114 F.3d at 1426 (quoting Watterson
v. Page, 987 F.2d 1, 3-4 (1st Cir. 1993) (quoting
Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d
42, 48 (2nd Cir. 1991)).
authenticity of these three letters does not appear to be
disputed. They are attached and integral to the Complaint,
which in effect incorporates them by reference. Although
these letters are of limited significance in relation to the
issues on these motions to dismiss, it is permissible to
State and Judge Covello attach to their motion to dismiss
certain papers from that State Court Action: the complaint,
the judgment, a post-trial motion filed by Mr. Somerset, and
the State court's order denying that motion. (ECF no.
24-7) Mr. Somerset's Reply attaches part of a transcript
from the State Court Action. (ECF no. 27-1) Although not
attached to the Complaint, these documents may be considered
integral to its claims, which refer to and are based on the
judgment and proceedings in the State Court Action.
addition, these State court filings are public records of
which a court may take judicial notice:
[O]n a motion to dismiss, we may take judicial notice of
another court's opinion-not for the truth of the facts
recited therein, but for the existence of the opinion, which
is not subject to reasonable dispute over its authenticity.
See Kramer v. Time Warner Inc., 937 F.2d 767, 774
(2d Cir. 1991); United States v. Wood, 925 F.2d
1580, 1582 (7th Cir. 1991); see also Funk v.
Commissioner, 163 F.2d 796, 800-01 (3d Cir. 1947)
(whether a court may judicially notice other proceedings
depends on what the court is asked to notice and on the
circumstances of the instant case).
S. Cross Overseas Agencies, Inc. v. Wah Kwong Shipping
Grp. Ltd., 181 F.3d 410, 426-27 (3d Cir. 1999). See
generally Fed. R. Evid. 201.
Somerset cites the transcript excerpt in support of his
contentions against Partners. (ECF no. 27 at 2) Defendants
cite the court documents in support of their contentions
that, under the Rooker-Feldman doctrine and
principles of res judicata, this action is barred by
the prior state court judgment. The documents are relevant,
not for facts contained therein, but in order to establish
the nature of the prior proceedings and the rulings of the
State court. For that limited purpose, I will take notice of
The Prior State Court Action
November 12, 2015, Mr. Somerset filed the complaint against
Joseph Elam in the State Court Action. Somerset v.
Elam, No. DC-06311-15 (N.J. Superior Court, Law
Division, Special Civil Part) (ECF no. 24-7 at 2) The State
Court Action complaint says that Elam did not act properly as
Somerset's business partner in that, inter alia,
he cheated Somerset and "took the van for his purpose
only." The complaint demanded $15, 000 in damages.
matter was tried without a jury on April 20, 2016.
(See ECF no. 27-1, ECF no. 24-7 at 5) The presiding
judge was Hon. Frank Covello, J.S.C. Mr. Somerset appeared
pro se; Mr. Elam was represented by Lawrence D.
limited transcript excerpts, Mr. Somerset testifies that he
and Mr. Elam agreed to start a business and to reinvest
profits in the business. He shows the court and opposing
counsel documentation of the price of the van, which was $10,
000. (ECF no. 27-1)
close of the plaintiffs case, Judge Covello granted the
motion of Mr. Elam for entry of judgment in his favor. (ECF
no. 24-7 at 15) Elam's counterclaim was dismissed on
condition that Somerset tender the van keys to the van to
Elam. (ECF no. 24-7 at 5)
trial, Mr. Somerset moved for reconsideration. The motion
states that Somerset was not given the opportunity to present
evidence of Elam's breach of contract in relation to
their business, S&B Carpet Cleaning & Floor Care Co.
He cites a statement in Elam's counterclaim to the effect
that the two entered into an agreement to purchase a used
2007 Ford Econoline van for use in their business. He states
that their implied agreement did not permit the van to be
used for the transportation of medical equipment and
supplies. Rather, it was to be used in the parties' joint
business, and proceeds were to be shared. Somerset stresses
he is not licensed to drive, and says that Elam took
advantage of his disability. (ECF no. 24-7 at 8, 10-11)
October 31, 2016, Mr. Somerset evidently sent a letter or
letters to the United States Attorney's Office for the
District of New Jersey (USAO). The USAO sent two letters,
both dated November 28, 2016, in response. (ECF no. 1 at
9-10) The letters note that Somerset has lodged complaints
against Judge Covello and Joseph Elam in relation to a
possible violation of the ADA. The USAO letters state that
the Office will not take further action, but has referred the
complaints to the appropriate agencies.
directly from Mr. Somerset, or by referral from the USAO, the
U.S. Department of Justice, Civil Rights Division, received a
complaint that Judge Covello had violated the ADA. In a
letter dated December 5, 2016, the Division declined to take
further action. (ECF no. 1 at 8)
three letters state that they are not determinations on the
Complaint in This Action
February 14, 2017, Mr. Somerset filed his Complaint in this
federal court action. ("Complaint," cited as
"Cplt.," ECF no. 1) Its allegations, taken as true
for purposes of these motions, are as follows:
1990s, Mr. Somerset was diagnosed with diabetes. Despite