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Argen v. Kessler

United States District Court, D. New Jersey

May 10, 2019



          KEVIN MCNULTY. U.S.D.J.

         The plaintiffs, Paul Argen and Surender Malhan, seek declaratory relief under 42 U.S.C. § 1983 and the Declaratory Judgment Act ("DJA"), 28 U.S.C. § 2201, regarding a June 2015 court order (hereinafter, "Gag Order") by the Honorable Donald Kessler of the Superior Court of New Jersey.[1] Judge Kessler issued that Gag Order in the course of a bitter divorce and child custody dispute between Malhan and his ex-wife, Alina Myronova. The order limits the ability of the parties to discuss publicly certain aspects of the custody dispute. Plaintiffs have also named the Attorney General of the State of New Jersey, Gurbir Grewal, as a defendant.

         As outlined in more detail elsewhere ("MTD Op.", DE 26), the parties do not seem to dispute at least that a family court may enter an order requiring confidentiality based on a proper showing as to the effect of public statements on the welfare of the children involved in the dispute. Judge Kessler entered what was intended to be a 30-day order based on the limited information before him. The order clearly contemplated that further evidence would be taken, and that it could be further tailored as necessary to its proper purpose of protecting the children. His attempts to retain a joint psychological report from a court expert were frustrated by the parties' inability to cooperate. He then ordered that each party submit its own psychological report, on the basis of which he would rule. That did not occur. (See MTD Op. at 4-6, DE 26).

         Plaintiffs initially moved for temporary restraints and a preliminary injunction. I denied the request for temporary restraints and scheduled a hearing on the preliminary injunction, after which I reserved decision. Defendants then moved to dismiss the complaint. (DE 13). On April 6, 2018, I entered a procedural order that the two motions would be decided together. I also directed that "counsel shall report in writing on the progress being made to furnish psychological reports as ordered by Judge Kessler." (DE 16). In a certification dated April 18, 2018, counsel for plaintiffs stated that Malhan's custody expert had declared herself unqualified to provide a psychological report with respect to the effect of publicity on the children, and that Myronova's designated psychologist had not yet submitted a report. (DE 18). The Court has not received a further update on whether the parties have made any alternative arrangements to furnish a psychological report.

         In a written opinion, I granted defendants' motion to dismiss the complaint in its entirety as to Attorney General Grewal, and also insofar as it sought injunctive relief against Judge Kessler. (MTD Op., DE 26; DE 27). Additionally, and in the alternative, I denied plaintiffs' motion for a preliminary injunction. (MTD Op. at 18-21). This Opinion, which is supplemental to the earlier one, should be read in the context of that earlier Opinion.

         Now before the Court is the state-court Judge's motion to dismiss what remains of the complaint for lack of subject-matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1).[2] (DE 30). His main assertion is that since the plaintiffs' only remaining claim is one for declaratory relief under the DJA, 28 U.S.C. § 2201, and die DJA alone cannot provide a basis for federal subject-matter jurisdiction, the complaint ought to be dismissed. As detailed more extensively below, I will deny defendant's motion to dismiss because the remainder of plaintiffs' claim under 42 U.S.C. § 1983 provides a sufficient basis for federal-question subject-matter jurisdiction.

         Additionally, plaintiffs have brought a second motion for a preliminary injunction. (DE 35). Largely for the reasons stated in my Opinion denying plaintiffs' first motion for a preliminary injunction (MTD Op. at 18-21), that second motion is denied.

         I. Background

         a. Factual summary

         I write for the parties and incorporate by reference the factual background found in the first motion to dismiss Opinion dated September 28, 2018 (MTD Op at 2-8; DE 27). For clarity, I note at the outset that Judge Kessler recused himself from die family court proceedings and was replaced by Judge David Katz. (MTD Op. at 6). As in the MTD Opinion, I find that Judge Katz's substitution does not alter the substance of the issues. (Id. at 6 n.5). References herein to Judge Kessler should be read, as appropriate, to include Judge Katz as his successor.

         b. Relevant procedural history

         I incorporate by reference the procedural history related in the MTD Opinion. (MTD Op. at 2-7). In that Opinion, I granted defendants' motion to dismiss the complaint as to all claims against Attorney General Grewal and as to the claim for injunctive relief against Judge Kessler. Those dismissals were entered without prejudice to the submission of a properly supported motion for leave to amend the complaint within 30 days, i.e., by October 29, 2018. (DE 26; DE 27). Because the plaintiffs have not filed a motion to amend the complaint, those dismissals have ripened into dismissals with prejudice.

         On November 9, 2018, Judge Kessler filed a motion to dismiss the remainder of the complaint for lack of jurisdiction, the motion now before the Court. (DE 30). Additionally, on April 12, 2019, plaintiffs filed a second motion for injunctive relief, which is also before the Court. (DE 35).

         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. 8s 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 Rule 12(b)(1) standard is similar to that for an ordinary motion to dismiss for failure to state a claim under Rule 12(b)(6). For 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. 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." Bell Atl. Corp. v. Twombly,550 U.S. 544, 555 ...

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