United States District Court, D. New Jersey
WILSON K. BAQUERO, Plaintiff,
JENNIFER MENDOZA, et at, Defendants.
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).
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.
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.
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).
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.).
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).
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) 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
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.
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.
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 (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.
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 ...