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Baquero v. Mendoza

United States District Court, D. New Jersey

August 6, 2019

WILSON K. BAQUERO, Plaintiff,
v.
JENNIFER MENDOZA, et at, Defendants.

          OPINION

          KEVIN MCNULTY, U.S.D.J.

         Plaintiff Wilson K. Baquero brings this lawsuit, pro se, against Jennifer Mendoza, the Florida Department of Revenue, Senior Probation Officer Christine Tardif, Judge Arthur M. Birken, Child Support Hearing Officer Konstantin Feldman, Judge Linda Mallozzi, and Judge Thomas K. Isenhour, challenging state court rulings regarding his child support obligations. Currently before the Court are three motions to dismiss the complaint: one filed by Judge Birken (DE 8), another filed by the Florida Department of Revenue (DE 15), and the third filed by Konstantin Feldman, Judge Isenhour, Judge Mallozzi, and Christine Tardif (DE 25).[1]

         For the reasons stated herein, I will grant the defendants' motions and dismiss the complaint. In short, a defendant dissatisfied with the results of a state court case must file an appeal in state court; such a defendant cannot ordinarily obtain relief by suing the judge and court personnel.

         I. BACKGROUND

         Mr. Baquero filed his complaint with this Court on October 17, 2018. (DE 1). For purposes of a Rule 12(b)(6) motion, the allegations of the complaint are assumed to be true. See Section II, infra.

         Mr. Baquero alleges that he was not allowed "to speak or be heard" when his property was deprived. (DE 1 at 3). While not directly apparent from the complaint, the attachments to the complaint indicate that the alleged deprivation of property takes the form of state court orders from Florida and New Jersey that found Mr. Baquero to owe and be in arrears for child support payments. (DE 1-1 at 1-10).

         Specifically, on June 28, 2012 Judge Arthur M. Birken of the Circuit Court of the Seventeenth Judicial Circuit in Broward County, Florida, issued an order and final judgment that found Mr. Baquero in arrears for child support in the amount of $6, 890.00. (DE 1-1 at 1-10). Going forward, Mr. Baquero would owe $266.00 per month as of August 1, 2012, for his ongoing child support obligations and $35.00 per month towards the arrearage. (DE 1-1 at 5, 6). According to the final judgment of support, Mr. Baquero appeared at the final hearing by telephone, and he was served and filed an answer. (DE 1-1 at 3). The court found that paternity was previously established by a paternity affidavit and therefore was not an issue in the case. (Id.).

         Separately, Mr. Baquero appears to have challenged his child support obligations in New Jersey state court. (See DE 1-3) He attached to his complaint various filings from 2018 that he submitted to the Family Division and Appellate Division of the Superior Court of New Jersey. (Id.; DE 1-4; DE 1-5; DE 1-6; DE 1-7). He also attached a single page excerpt from what appears to be a New Jersey state court order dated May 23, 2018 that describes an enforcement application from the probation office and recites the following: "The Defendant [Mr. Baquero] provided an Order from Florida dated 5/11/17 which stated that the case in Florida which is being enforced in New Jersey had been dismissed without prejudice on 5/11/17. The matter shall be relisted before the Court to determine whether [Mr. Baquero's] child support obligation including payment of arrears has been terminated in Florida. The collection and enforcement of Defendant's child support obligation shall be suspended pending determination of the status of the case in Florida." (DE 1-3 at 40).

         The Florida Department of Revenue attached to its motion to dismiss the most recent order from the New Jersey Chancery Court, signed by Judge Isenhour and dated September 24, 2018. (DE 15-3)[2] This order indicates that Mr. Baquero owes arrears in the amount of $22, 132, 39 as of September 24, 2018, and that two or more missed future payments may result in the issuance of a warrant without further notice. (Id.). It also says that Mr. Baquero appeared at a September 24, 2018 hearing and that the court denied his application to dismiss enforcement of his child support obligations, which Mr. Baquero had challenged on the basis of his original support order having allegedly been dismissed in Florida. (Id.).

         Defendant Judge Birkin presided over Mr. Baquero's child support case in the Seventeenth Judicial Circuit in Broward County, Florida. Mr. Baquero also lists the Florida Department of Revenue as a defendant. The New Jersey state defendants include Judge Isenhour, Judge Mallozzi, Senior Probation Officer Christine Tardif, and Child Support Hearing Officer Konstantin Feldman. Defendant Jennifer Mendoza has not appeared in this case, although from what can be gleamed from the pleadings, she is the mother of Mr. Baquero's child.

         Mr. Baquero seeks vacatur of the orders that require him to pay child support, return of the funds he has already contributed to child support, and money damages from the individual defendants. (DE 1 at 4). Mr. Baquero's claims may be interpreted as having been brought under 42 U.S.C. § 1983. The defendants move to dismiss the complaint on a variety of grounds.

         II. LEGAL STANDARD

         A motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 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 Moore's Federal Practice § 12.30[4] (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. The jurisdictional arguments made here are based on the allegations of the complaint. Accordingly, 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).

         Federal Rule of Civil Procedure 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 ...


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