The plaintiffs, Surender Malhan, Elvin Serrano, Zia Shaikh, and the Family Civil Liberties Union, seek relief under
Now before the Court are defendants' motions to dismiss the Third Amended Complaint ("Complaint").
I. Summary of Allegations
Plaintiffs' Complaint alleges the following facts. For purposes of this motion to dismiss only, I must assume the truth of the well-pleaded, factual
a. Parties
The plaintiffs, Surender Malhan, Elvin Serrano, and Zia Shaikh, are New Jersey residents who have pending proceedings in New Jersey Superior Court, Family Division. (Comp ¶ 3). Each of these individual plaintiffs has lost custody in family court child-custody proceedings. (Comp ¶ 11).
Plaintiff Family Civil Liberties Union ("FCLU") is a § 501c(4) organization incorporated in New Jersey. (Comp ¶¶ 4, 5). FCLU has approximately 7,500 members across the United States. Nearly all of its 750 New Jersey members are or have been involved in New Jersey family court custody proceedings. (Comp ¶¶ 6, 7).
Defendant Gurbir Grewal is the Attorney General of New Jersey. He and ten fictitious "John Doe" defendants are named in their official capacities only, as persons "presumably ... tasked with administ[ering] and enforcing New Jersey law." (Comp ¶¶ 14, 22).
Defendant Judge David Katz is the presiding judge of the family division of the Essex County Superior Court who has at times presided over Malhan's family court dispute. (Comp ¶¶ 15, 37). Defendant Judge Donald Kessler is a judge of the Essex County Superior Court who has at times presided over Malhan's family court dispute. (Comp ¶ 17). Judge Marcella Matos Wilson is a judge of the family division of the Essex County Superior Court who has presided over Serrano's family court dispute. (Comp ¶ 18).
Defendant Richard Federici was hired by the State of New Jersey to perform counseling services for plaintiff Serrano's
Defendant Soaring Heights Charter School is a New Jersey charter school located in Hudson County which Malhan's children attended. (Comp ¶ 21).
b. Allegations regarding Malhan case
i. Malhan family court proceedings
Malhan's allegations grow out of a bitter divorce from Alina Myronova and a custody dispute over the couple's two children that began in 2011. (Comp ¶¶ 23-27). Over the course of those family court proceedings Malhan and Myronova made accusations against each other, including that Malhan was mentally unstable, that Myronova made several false representations, and that each had engaged in miscellaneous criminal conduct. (Comp ¶¶ 28-35). In early 2017, Hudson County prosecutors indicted Malhan based on accusations made by Myronova, but that indictment was later dismissed. (Comp at pp. 9-12).
In 2017, Myronova filed a motion for an order to show cause in which she requested and received exclusive custody of their two children. (Comp ¶ 27). In making the custody determination, which was later relaxed, Judge Katz "appeared to" have relied upon information from the New Jersey Division of Child Protection and Permanency ("DCPP") that was provided to him ex parte and not entered into the record (hereinafter, the "DCPP Interim Report"). (Comp at pp. 14-15) Plaintiffs take issue with the manner in which the DCPP communicated this information to the family court. (Comp ¶¶ 42-47). According to the plaintiffs, the family court "appeared to entirely disregard all of the counter evidence presented by Malhan" and "appeared to be relying on the [DCPP Interim Report]" in making its custody determination. (Comp ¶¶ 44, 45).
Thereafter, in September 2017, Malhan filed his own motion for an order to show cause in an attempt to regain custody of his children. (Comp ¶¶ 47-53). In that motion Malhan complained that Myronova's boyfriend, Jeff Rothstein, was spending time alone with the children in violation of a prior family court order. (Id. ). The family court has not taken any action to date in response to the allegation that Myronova violated its order. (Comp ¶ 58).
Malhan wanted the family court to hear evidence at an October 2017 hearing from a psychologist whom he had hired, Dr. Lidia Abrams, but the court denied that request. (Comp ¶¶ 54-62, 136-38, 149). During the October 2017 hearing, the family court also denied Malhan's renewed request to regain custody of his children. (Comp ¶¶ 63-67). Judge Katz based his decision to deny Malhan custody in part on the DCPP Interim Report, which articulated "child welfare concerns." (Comp ¶ 64). Judge Katz declined to disclose to the parties "what the children may or may not have said" to DCPP agents who created the Interim Report. (Id. ). Malhan objects that this DCPP Interim Report amounts to "secret evidence" that was not admitted into the record, and therefore not subject to "meaningful opposition." (Comp ¶¶ 65-66).
Later in October 2017, the family court did permit the parties to review the DCPP Interim Report at the courthouse but did not permit them to keep a copy. (Comp ¶¶ 71-72). In describing the DCPP Interim Report, the family court noted that it was
Malhan's counsel took issue with the admissibility of the DCPP Interim Report. (Comp ¶ 76). Nonetheless, the family court determined that it would be "shunning [its] responsibilities if [it] turned a blind eye to" the DCPP Interim Report. (Comp ¶ 77). Therefore, the family court reasoned that until it received "psychological evaluations that contradict or explain or create some type of factual issue [with regard to the DCPP Interim Report,] DCPP's recommendations and intimations need to be respected." (Id. ). On this basis, the family court suspended Malhan's custody privileges and only allowed him limited, supervised visitations with the children. (Comp ¶¶ 77, 115).
At this point Malhan attempted to submit the psychological report of his retained psychologist, Dr. Abrams, which purportedly gave Malhan "a clean bill of health." (Comp ¶ 80). However, the family court would not consider Dr. Abrams's report until the DCPP finished its full assessment. From the Complaint, it can be inferred that the DCPP Interim Report, as the name implies, was an initial appraisal that would be followed by a more complete DCPP assessment. (Comp ¶ 81). The family court noted that without the full DCPP assessment, it was "not inclined to ignore the concerns raised by DCPP," which-although this is not directly stated in the Complaint-appear to be based on suspicions that Malhan may have had suicidal ideations. (Id. ; Comp ¶ 120).
In November 2017, the DCPP completed its full assessment and submitted its findings to the family court. (Comp ¶ 102). As part of its assessment, the DCPP hired Dr. Sigafoos to conduct an evaluation of Malhan. This evaluation included an approximately hour-long interview in October 2017 and resulted in a report by Dr. Sigafoos (the "Sigafoos Report"). (Comp ¶¶ 107, 110). During a November 30, 2017 hearing, the family court announced that the previous intimations that Malhan was suicidal were unfounded. (Comp ¶¶ 116, 120). Nonetheless, said the court, the Sigafoos Report "raised some collateral concerns" about Malhan and his "parenting ability." (Comp ¶¶ 118, 120). The family court then allowed the parties to review the Sigafoos Report. (Comp ¶¶ 117-20). Malhan challenged the admissibility of that report on a variety of grounds. (Id. ).
During this November 2017 family court hearing, Malhan again requested custody of his children. (Comp ¶ 121). The family court did not formally admit the Sigafoos Report into evidence but referred to it in deciding not to grant complete custody to Malhan. (Comp ¶ 122). However, in an order dated November 30, 2017 (the "November 2017 Order"), Judge Katz did lift some of the prior restrictions on Malhan's custody rights and allowed him to have unsupervised daytime visits with the children on the weekends for the first two weeks (so as to transition the children back into increased parenting time with Malhan), to be followed by three overnight visits per week from Tuesday through Friday. (Comp ¶¶ 123-25).
Despite being granted limited custody rights in the November 2017 Order, Malhan generally takes issue with (a) the limitations imposed during the twelve-week period between the DCPP Interim Report and the November 2017 Order (whereby he was only permitted to see his children for a total of about ten hours in a supervised setting); and (b) the current, less onerous but still significant limitations on his custody. (Comp ¶¶ 115, 125-30). Malhan Finds this twelve-week period and the
In January 2018, the family court permitted Malhan's retained expert, Dr. Abrams, to review a portion of the Sigafoos Report. (Comp ¶ 132). According to the plaintiffs, Dr. Abrams thought the reviewed portion of the Sigafoos Report included "glaring deficiencies." (Comp ¶¶ 132-136). Meanwhile, Dr. Abrams's own evaluation concluded that Malhan did not pose a danger to the children and that the separation of the children from their father was contrary to the best interests of the children. (Comp ¶ 149).
Malhan asked the family court to hear from Dr. Abrams and other witnesses, but the court denied this request. (Comp ¶¶ 150-52). Malhan filed a motion with the New Jersey Appellate Division for leave to file an interlocutory appeal, but that motion was denied. (Comp ¶ 153). According to the plaintiffs, there is no right to appeal the suspension or termination of custody in New Jersey because these types of family court orders are not final for appeal purposes. (Comp ¶ 154).
Despite the November 2017 Order granting Malhan limited custody rights, Myronova refused to comply and did not permit Malhan to see the children. (Comp ¶ 156). In December 2017, Malhan filed a motion for an order to show cause asking the family court to enforce its November 2017 Order. (Comp ¶ 159).
Judge Kessler-who had been out on medical leave during the period that Judge Katz presided-returned from leave and heard that motion on December 21, 2017. (Comp ¶ 205). Instead of enforcing the November 2017 Order, Judge Kessler again suspended all of Malhan's unsupervised parenting time and all overnight visits with the children. (Comp ¶ 206). Judge Kessler's determination was based in part on the Sigafoos Report. (Comp ¶¶ 206-07). Plaintiffs again took issue with the fact that the Sigafoos Report was not admitted into evidence, that "Judge Kessler appeared to accept and state the allegations as true," that Sigafoos had never testified or been subject to cross examination, and that the findings were contradicted by the opinion of Dr. Abrams. (Comp ¶¶ 208-09).
Judge Kessler also based his determination in part on information provided by the DCPP that one of the children had reported that Malhan was questioning the child about Myronova, in violation of one of Judge Kessler's prior orders. (Comp ¶¶ 210-11). Judge Kessler had not read the report by Dr. Abrams because it is "a party report" and he wanted to "get the independent evaluations" and "go from there." (Comp ¶ 215).
Malhan then participated in supervised visits with his children at a center called Peaceful Healing. (Comp ¶¶ 219-22). The owner of Peaceful Healing reported to the family court that Myronova and Rothstein "carelessly" made "derogatory" comments about Malhan in the presence of the children, insinuating that Malhan was a danger to be around. (Id. ).
In January 2018, Malhan filed another motion for an order to show cause asking the family court to restore full custody, and to prevent Myronova from listening in on phone calls between Malhan and the children. (Comp ¶ 225). In February 2018, the family court did order that Myronova
On February 9, 2018, the family court restored Malhan's custody rights in accordance with the November 30 order, which had begun a transition process. In its order (the "February 9 Order"), the court ordered that Malhan's unsupervised parenting time would resume on February 10, 2018, and that his overnight unsupervised parenting time would resume on Wednesday, February 21, 2018 "at school let out."
Despite the February 9 Order, Myronova refused to cooperate and did not relinquish custody on February 10. (Comp ¶¶ 241-42). Plaintiffs, without elaboration, contend that Myronova's noncooperation prompted the family court to again suspend all of Malhan's unsupervised parenting time. (Comp ¶¶ 243, 255). On February 15, 2018, the court ordered him to have supervised parenting time with the oversight of Maureen Grippo. (Id. ). Since February 15, 2018, Malhan has had around two hours of supervised parenting time per week. (Comp ¶ 244).
On June 8, 2018, Judge Kessler recused himself from any further involvement in the Malhan/Myronova family court matter; he was replaced by Judge Katz. (Comp ¶¶ 258, 270). In July 24, 2018, Judge Katz ordered that Malhan receive two days of unsupervised parenting time two days a week. (Comp ¶¶ 260, 263). Myronova refused to cooperate and Malhan began reporting to the police that Myronova had interfered with his custody, but the police took no action. (Comp ¶¶ 265, 267). When Malhan complained of this conduct to the family court, it did not sanction Myronova, and when Judge Katz learned of Malhan's reports to the police he "scowled and shook his head at Malhan." (Comp ¶ 268). Through September 2018, Malhan has only been permitted around one hour per week of supervised parenting time. (Comp ¶ 269).
As of the date of the filing of the Complaint, the current order of the family court provides that Malhan may not have any unsupervised visitation time with his children. (Comp ¶ 246). Throughout the Complaint, Malhan alleges that in making its determinations the family court selectively evaluated inadmissible evidence and ignored the evidence he tried to present. (Comp ¶¶ 68, 79, 82, 213).
Additionally, Malhan complains that he was not allowed to have counsel present when being evaluated by DCPP officials. (Comp ¶¶ 272-278). In September and October 2017, when Malhan met with DCPP officials for an evaluation of his potential suicidal ideations, DCPP told him that they would not speak to him in the presence of his legal counsel. (Id. ). Malhan contends that if a person refuses to be evaluated by DCPP without counsel present, DCPP reports to the family court that the parent is not being cooperative. (Comp ¶ 274).
ii. Malhan allegations regarding Soaring Heights
In 2017, Malhan's children attended Soaring Heights Charter School ("Soaring
1. That the restraints on [Malhan's] parenting time have been lifted pursuant to the DPC & P report received by the Court on November 21, 2017 for the reasons stated on the record.
2. That [Malhan] shall have unsupervised day-time visits with the children on Saturdays and Sundays from 8:00AM until 7:00PM beginning December 2, 2017 and continuing for two consecutive weekends, so as to transition the children back into parenting time with Defendant, for the reasons stated on the record.
3. After the two weekends of unsupervised visitation conclude, [Malhan] is to have unsupervised parenting time with the children on Tuesdays after school until Friday mornings at school drop-off. The remaining days will be parenting time for [Myronova].
4. Transfers of the children between [Malhan] and [Myronova] will continue to take place at the Bayonne Police Station.
(Comp ¶¶ 157, 165).
Despite this Order, Myronova refused to give Malhan the children on the two weekends starting December 2 and 9, 2017. (Comp ¶¶ 167-68). Nonetheless, Malhan sought to pick up his children after school on Tuesday, December 12, 2017. (Comp ¶¶ 170-71).
Malhan contacted Soaring Heights in advance to inform them of the November 2017 Order and let them know that he would be picking up the children from school on December 12 and that they would remain with him through December 14. (Comp ¶ 171). Soaring Heights's attorney responded by sending Malhan's attorney an email on December 11, in which the attorney communicated that the school would not permit Malhan to pick up the children due to a perceived ambiguity in the November 2017 Order;
The Order requires that child-transfers between mom and dad occur at the Bayonne Police Station. The Order is silent on the manner in which student pick up and drop off should take place.
Not having information on the circumstances over why the court has restricted child transfers in such manner, and having the utmost responsibility to maintain a safe school environment, the School will request clarification of the November 30, 2017 Order by letter tomorrow. In the meantime, the School will continue implementation of the status quo from last week, namely with mom picking up the children at School.
(Comp ¶ 172).
Despite this email, on Tuesday, December 12, 2017, Malhan arrived at Soaring Heights to pick up his children but the school refused to give the children to him. (Comp ¶ 181). The school similarly refused to allow Malhan to pick up the children on Wednesday and Thursday of that week. (Comp ¶ 182). Malhan asserts that the school's refusal to give him his children was based on some unspecified, preexisting animus towards him. (Comp ¶¶ 187-89).
On December 13 Malhan's counsel contacted counsel for Soaring Heights for an explanation of the school's refusal. (Comp ¶ 183). The school's attorney provided the same reasons as in the December 11 email. (Comp ¶¶ 184-85). Malhan had no parenting time with his children during the week of December 12. (Comp ¶ 186).
On December 18, 2017, Malhan filed a complaint and motion for order to show cause in the Hudson County Superior Court seeking an order that would direct Soaring Heights to comply with the family court's November 30 Order. (Comp ¶ 192).
iii. Malhan allegations regarding Peaceful Healing
In December 2017, Malhan was limited to having supervised visitation with his children under the supervision of Peaceful Healing. (Comp ¶ 305). Malhan and the children had a supervised visit with Peaceful Healing scheduled for December 29, 2017. Malhan proposed that they all participate in a family karate class. (Comp ¶ 308). The head of Peaceful Healing agreed to this proposal and discussed the plan with Myronova. (Comp ¶ 309).
The Peaceful Healing supervisor at the time of the proposed December 29 karate excursion was Ms. Daru. (Comp ¶ 311). Although Ms. Daru prohibited recording, Malhan made an audio recording of a conversation involving the children and Ms. Daru. (Comp ¶¶ 310, 312-13). At that time, the children, "apparently acting at the direction of their mother," said they did not want to go to karate. (Comp ¶ 316). Malhan insisted that they go because "karate class was the plan that everyone had agreed to and he did not want to change it." (Comp ¶ 317). Ms. Daru thought that if the children did not want to go to karate then they should change the plans. (Comp ¶ 318). Malhan reiterated that karate was the agreed upon plan and continued to drive to the family's residence to pick up the children's karate uniforms. (Comp ¶ 319).
When they arrived at the apartment Malhan went inside to get the uniforms and left the children in the lobby with Ms. Daru. (Comp ¶¶ 321-22). When Malhan returned to the lobby, Ms. Daru told Malhan that she was ending the visit. (Comp ¶ 323).
At some point in the following weeks, a letter was sent to the family court on Peaceful Healing stationery entitled "Parent Chaperone Summary." (Comp ¶ 324). The Summary was not court ordered and was not initially shared with the parties. (Comp ¶¶ 325-26). The Summary included a series of allegedly false accusations against Malhan, including that he had "angrily yelled" at the children multiple times, and that he talked "about how abuse is not bad because it sets discipline and order for the child." (Comp ¶ 327). Malhan asserts that the audio recording of the incident shows these accusations to be false. (Comp ¶ 328). This Summary made it more difficult for Malhan to have any parenting time with his children. (Comp ¶ 329). Malhan claims that the Summary was defamatory. (Comp ¶¶ 330-31).
c. Allegations regarding Serrano case
i. Serrano allegations regarding family court proceedings and Dr. Federici
Plaintiff Serrano and his wife divorced in 2008. (Comp ¶ 282). They have one child, a daughter, who was fifteen at the time plaintiffs filed the Complaint, (Comp ¶ 283). Under the terms of their divorce, legal custody was joint and they shared parenting. (Comp ¶ 284). Between the divorce and September 7, 2017, Serrano's daughter lived with him around fifteen to twenty-two days per month. (Comp ¶ 285).
Citing concerns about abuse by his ex-wife, Serrano filed a motion to obtain full custody of his daughter around March 2017. (Comp ¶ 286). As a result of this
Around August 28, 2017, Dr. Federici sent a letter to the family court offering advice on the Serrano custody dispute. (Comp ¶ 289). The next day, Serrano went to Dr. Federici's office around 12:30 P.M. to discuss the recommendations in Dr. Federici's letter. (Comp ¶ 290). Serrano recorded their interactions. (Comp ¶ 294). Initially, Dr. Federici told Serrano that it was not a good time to speak because Dr. Federici had a conference call. (Comp ¶ 291). Serrano intimated that he would depose or subpoena Dr. Federici in the family court matter. (Comp ¶ 347). Serrano then left the office and returned around 1:00 P.M. in the hopes that they could speak after Dr. Federici's conference call. (Comp ¶¶ 292, 346).
When Dr. Federici saw Serrano in the lobby area Dr. Federici was visibly upset to see him. (Comp ¶ 293). Dr. Federici said, "you're interfering with my practice, okay, go ahead, I'm going to give you a minute, please go." (Comp ¶ 351). Serrano then began discussing the August 28 letter that Dr. Federici sent to the family court. (Id. ). The following exchange took place:
ELVIN SERRANO: You say that you don't know the cause of stress for [child] and you recommending that [child] still resides with her mother and --
DR. FEDERICI: -- I didn't say, it was [name] or it was you -- I didn't say who it was. I said, I'm not blaming a parent. What I'm going to do is I'm going to set this up so we take care of [child] and not blame parents, that's what I said. That's the point of that letter. It's not to determine blame. I will not do that. Don't put me in the corner. You're going to find out something about me, okay, are you threatening me right now?
ELVIN SERRANO: I'm not --
DR. FEDERICI: -- did you just threaten me?
ELVIN SERRANO: What are you talking about --
DR. FEDERICI: -- did you just threaten me, Elvin? I think you just threatened me --
ELVIN SERRANO: -- I'm going to (indiscernible) --
DR. FEDERICI: -- I think you just threatened me with your hand -- you put your hand up like you were going to hit me --
ELVIN SERRANO: -- (indiscernible) --
DR. FEDERICI: -- you put your hand up like you were going to hit me. Don't you dare put your hand up --
ELVIN SERRANO: -- I haven't --
(Comp ¶ 351). After this conversation Serrano left the office. (Comp ¶ 218). Later that day Dr. Federici called the police to report that Serrano was threatening him. (Comp ¶¶ 297, 302-03).
On August 30, 2017, Dr. Federici sent a letter to the family court accusing Serrano of threatening him. (Comp ¶¶ 298-99). Dr. Federici's letter asserted that Serrano was angry with him for the August 28 letter he had written to the family court and claimed that Serrano "made a fist at me in a menacing manner." (Comp ¶ 300). The following is an excerpt of Dr. Federici's August 30 letter:
[Serrano's] voice was calm, but he was physically acting aggressive/challenging, making faces at me, grimacing. The juxtaposition of a calm voice with an agitated facial expressions and demeanor, wasbizarre and frightening. It became clear to me what was going on when he informed me that he was, and had always been secretly recording our conversations and videotaping me. He showed me the hidden camera, and then made a fist at me in a menacing manner. It was very tense and frightening. I started yelling, "you are threatening me", hoping to get Mr. Serrano to back down, and to get the attention of others in my building.
(Comp ¶ 301).
Dr. Federici's August 30 letter went on to describe how he called the police after this incident and reported that he felt threatened by Serrano. (Comp ¶ 303). According to that letter, the police recommended that Dr. Federici remove himself from the case and also informed him that they told Serrano over the phone that if he returned to Dr. Federici's office he would be arrested. (Id. ).
The family court "apparently relied" on these letters in restraining Serrano from having any contact with Dr. Federici. (Comp ¶ 332). Plaintiffs take issue with the family court's reliance on these letters because they include "hearsay within hearsay." (Id. ). Serrano's ex-wife also filed a motion for an order to show cause that attached a copy of Dr. Federici's letter (the Complaint is unclear as to whether it was the August 28 letter or the August 30 letter) and demanded an immediate change of custody. (Comp ¶ 336).
The family court held an emergent proceeding on September 7, 2017, in which Dr. Federici did not testify and was therefore not subject to cross examination. (Comp ¶¶ 337, 338, 343). Serrano testified under oath that he did not threaten Dr. Federici. (Comp ¶ 339). Serrano's ex-wife submitted a certification stating that, even though she was not present for the incident, Dr. Federici's assertions "rang true" to her. (Comp ¶ 340). The family court did not review the audio recording of the incident, but the plaintiffs assert that the audio recording shows that many of Dr. Federici's assertions in his August 30 letter were either false or misleading. (Comp ¶¶ 341, 345). The presiding family court judge, Judge Marcella Matos Wilson, stated that he knew Dr. Federici for many years and trusted him. (Comp ¶ 343). The family court made no findings of fact and ordered that Serrano's custody be limited on an interim basis. (Comp ¶¶ 352, 358).
In September 2017, the family court did not order any visitation for Serrano and his daughter, so Serrano made a request that the family court permit some visitation. (Comp ¶ 360). In November 2017, Serrano was permitted ten minutes with his daughter. (Id. ). Starting in January 2018, Serrano began to have one hour supervised parenting time with his daughter each week at Peaceful Healing. (Comp ¶¶ 361, 381).
In a letter filed with this Court dated April 26, 2019, plaintiffs' counsel informed this Court that the family court issued an order dated February 13, 2019 that granted Serrano split 50/50 custody over his daughter and designates him as parent of primary residence. (DE 49).
ii. Serrano allegations regarding Peaceful Healing
Peaceful Healing was appointed by the family court to help with Serrano's supervised visitations. (Comp ¶ 388). After the initiation of this lawsuit, Peaceful Healing informed Serrano that it did not wish to participate in his supervised visitations. (Comp ¶¶ 390-91).
Serrano asked Peaceful Healing to continue supervising the visits and pointed out that the initial iteration of the complaint did not involve allegations by him personally against Peaceful Healing; those allegations,
d. Allegations regarding Shaikh case
In 2008 Shaikh filed for divorce from his wife, Laura Germandig-Shaikh ("Germandig"). (Comp ¶ 397). Shaikh and Germandig have three children together. (Comp ¶ 396). In April 2014, Germandig filed a motion in the family court requesting that Shaikh be excluded from the family residence and that she obtain full custody of the children. (Comp ¶ 399).
On April 23, 2014, counsel for Germandig appeared before the family court for a case management conference. (Comp ¶ 400). Shaikh had not been notified of the proceeding, and "for reasons which remain unclear, Shaikh's counsel did not attend." (Id. ). The family court attempted to call Shaikh's counsel that morning but she could not be reached and the voice mailbox was full. (Comp ¶ 401).
At the April 23, 2014 proceeding Germandig's counsel made an oral application for an order to show cause to obtain exclusive custody of the children. (Comp ¶ 402). Germandig submitted an affidavit in which she accused Shaikh of "verbal harassment" and also claimed that Shaikh had "kicked" his daughter. (Id. ). Germandig did not tell the family court that DCPP had investigated these allegations in 2014 and determined that they were unfounded. (Comp ¶ 403). The family court then asked Germandig various questions at the hearing, but she did not explain the basis for her accusation that Shaikh had kicked his daughter and did not claim to have witnessed the alleged incident-plaintiffs contend that this lack of personal knowledge makes these statements inadmissible. (Comp ¶ 405).
Also at the April 23, 2014 proceeding, Germandig's counsel claimed that Shaikh was a Pakistani national and there was a risk that he would take the children out of the country. (Comp ¶ 406). Germandig's counsel told the family court that she was concerned about this risk even though Shaikh had never told anyone directly that he was planning to leave the country with the children. (Comp ¶¶ 407-08). Despite the fact that Shaikh is a naturalized U.S. citizen, the family court agreed with Germandig that there was a concern that Shaikh may try to take the children out of the country, which the family court determined would constitute immediate and irreparable harm. (Comp ¶¶ 409-10). The assessed flight risk was based on the following: Shaikh told the daughter that he was taking the children to Dubai on vacation; the daughter told Germandig about this trip; Shaikh then chastised the daughter for telling the mother about the trip and specifically told the children not to tell their mother when they have plans to leave the country. (Comp ¶ 410). Plaintiffs contend that the family court's concern of flight risk "appears to have been based" on speculation due to Shaikh's national origin and some "vague hearsay allegations." (Comp ¶ 411).
The family court granted the oral request at the April 23, 2014 proceeding for an order to show cause and awarded Germandig exclusive custody of the children. (Comp ¶ 414). This order barred Shaikh from returning to the residence, stripped him of legal and physical custody indefinitely until further order of the family court, made no provision for any parenting time, and did not explain the reasons for the decision. (Id. ; Comp ¶ 415).
At a June 13, 2014 family court hearing, Shaikh appeared pro se , explained that he was not given notice of the April 23, 2014 proceeding, and denied all the allegations
In May 2015, Shaikh filed a motion with the family court requesting that his custody be restored. (Comp ¶ 421). In response, Germandig submitted an unsworn letter to the family court in June 2015 by a licensed clinical social worker named Seth Arkuth, which recommended that any phone calls between Shaikh and the children be supervised by the mother, and in-person visitation be supervised by an experienced professional. (Comp ¶¶ 422-23). Shaikh objected to this letter as unsworn hearsay and noted that he had never met with Arkuth, but Germandig had met with him twelve times and the children seven times. (Comp ¶¶ 424-25).
Arkush's recommendation "appeared to be based on Germandig's claims of domestic violence," allegations that were discredited in June 2014. (Comp ¶ 426). Shaikh wrote his own letter objecting to the use of Arkush's letter and noted that Arkush was acting as a therapist for the children and was therefore prohibited under New Jersey law from offering an opinion about custody. (Comp ¶ 428). In January 2018, the New Jersey Board of Social Work Examiners fined and sanctioned Arkush for sending this letter because he improperly provided an opinion on parenting time when he was serving as a treating therapist. (Comp ¶ 429). Nonetheless, the family court "apparently relied on" Akrush's recommendation to deny Shaikh any custody or unsupervised visitation. (Comp ¶ 430).
In 2015, Shaikh brought a federal lawsuit as part of a larger group of parents that were denied full custody, which was ultimately dismissed. (Comp ¶¶ 434-35; see 3:14-cv-00760-FLW-DEA). Shaikh believes that his treatment in the family court became worse after he filed that federal suit. (Id. ). For example, Shaikh has been repeatedly jailed for allegedly failing to pay child support, but the family court did not hold an "ability to pay" hearing. (Comp ¶ 436).
e. Causes of Action
Plaintiffs assert that the defendants have a policy, practice, and custom of separating children from their parents without affording them an adequate hearing. (Comp ¶ 451).
In Count I, plaintiffs allege due process violations of the Fourteenth Amendment via
In Count II, plaintiffs seek a declaratory judgment pursuant to
In Count III, Malhan asserts a claim for defamation against Peaceful Healing and certain of its unnamed employees (named as John Doe defendants) for sending a report the family court relating their version of the karate class incident. He seeks damages. (Comp ¶ 524-551).
In Count IV, Serrano asserts a claim for defamation against Federici for sending the letter to the family court stating that
In Count V, Malhan asserts a retaliation claim against Judge Kessler, and Serrano asserts one against Peaceful Healing. Both are based on Malhan's or Serrano's having filed legal actions against them. They seek damages. (Comp ¶¶ 558-589).
In Count VI, Malhan asserts a "deprivation of rights under color of law" against Soaring Heights and certain of its employees (named as John Doe defendants) for not allowing Malhan to pick up his children from school on December 12, 2017. He seeks damages. (Comp ¶¶ 580-86). This is apparently a Monell claim pursuant to
Defendants Attorney General Grewal, Judge Katz, Judge Kessler, Judge Wilson, and the DCPP (collectively, the "State Defendants"), move to dismiss on a variety of grounds. (DE 42). I will grant their motion to dismiss on some of those grounds, enumerated below.
Defendant Soaring Heights separately moves to dismiss Count VI pursuant to Fed. R. Civ. P. 12(b)(6) and Fed. R. Civ. P. 20. (DE 43). I will grant Soaring Heights's motion and dismiss the claim against it.
Defendants Peaceful Healing and Dr. Sigafoos have not, to date, made an appearance in this case. (See DE 1 through DE 49). Defendant Dr. Federici answered an earlier iteration of the Complaint (DE 24) but has not otherwise moved or joined in these motions. (See DE 24 through DE 49).
II. Standard of Review
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. ,
Federal 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 [or her] '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 ,
Motions 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. ,
A factual attack, on the other hand, permits the Court to consider evidence extrinsic to the pleadings. Gould Elecs. Inc. v. United States ,
III. Analysis
a. The State Defendants' Motion to Dismiss
i. Rooker -Feldman
Defendants argue that the Court lacks jurisdiction to hear the plaintiffs' claims under the Rooker - Feldman doctrine.
I agree that Rooker - Feldman does not apply. Indeed, this court has so held in a prior decision in a similar case brought by these plaintiffs, upheld by the Third Circuit. See Allen v. DeBello ,
Under 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.' " Great W. Mining & Mineral Co. v. Fox Rothschild LLP ,
Four requirements must be met in order for the doctrine to bar suit: "(1) the federal plaintiff lost in state court; (2) the plaintiff complains of injuries caused
Here, the plaintiffs insist that they are not attempting to appeal a final state court judgment to this court; rather, they say, they are generally challenging the constitutionality of the procedures employed by the state court in making custody determinations-particularly, the denial of plenary hearings. The Third Circuit in Allen -which involved similar claims by Malhan and Shaikh that the New Jersey custody system violated due process standards-addressed whether the Rooker - Feldman doctrine applies. In finding that the doctrine did not bar the plaintiffs' suit, it reasoned as follows:
[ ] Plaintiffs here are not challenging the state court judgments, but the underlying policy that governed those judgments: the alleged policy of the New Jersey state courts of stripping parents of custody, in favor of the other parents, without a plenary hearing and employing an allegedly improper best-interests-of-the-child standard in such proceedings. Thus, Rooker - Feldman does not bar suit.
Allen ,
The same can be said in this case. The plaintiffs are asking this court to jump into an ongoing dispute over state court procedures-problematic, perhaps, for other reasons, but not for this one. Following Allen , I hold that the Rooker - Feldman doctrine is not a bar to plaintiffs' suit.
ii. Younger abstention
Defendants ask the Court to refrain from hearing this case under the Younger abstention doctrine.
Younger is based on principles of federalism and comity. A federal court
Again, the Third Circuit has already addressed this issue in Allen ,
These proceedings were not criminal proceedings. Nor were they civil enforcement proceedings, as there was no claim that Plaintiffs violated any civil statute. Finally, the Family Court proceedings and orders at issue here are not analogous to contempt hearings, and therefore do not fall into the category of proceedings which further the state's ability to perform judicial functions. As the case does not fall into any of the "exceptional" categories to which Younger abstention applies, Defendants' motion to dismiss the case on this ground is denied.
The same can be said here. I agree that, for the reasons enunciated in Edelglass and affirmed in Allen , this case does not fall into any of the three Sprint categories. I therefore hold that Younger abstention is not appropriate.
iii. State Court Judges as Proper Defendants
Defendants Judge Katz, Judge Kessler, and Judge Wilson assert that they were acting in an adjudicative capacity and therefore are not amenable to suit under § 1983. (DE 42-1 at 38). I agree.
When judges are the defendants in a § 1983 case, a threshold issue is whether the judges are "sued in their judicial capacity as neutral adjudicators of disputes." Georgevich v. Strauss ,
The First Circuit agreed that the Justices' role with respect to the statutes in question was adjudicative. "[T]he Justices act as they would in any other case based upon a Commonwealth statute: they sit as adjudicators, finding facts and determining law in a neutral and impartial judicial fashion."
Judges sit as arbiters without a personal or institutional stake on either side of the constitutional controversy. They are sworn to uphold the Constitution of the United States. They will consider and decide a claim that a state or Commonwealth statute violates the federal Constitution without any interest beyond the merits of the case. Almost invariably, they have played no role in the statute's enactment, they have not initiated its enforcement, and they do not even have an institutional interest in following their prior decisions (if any) concerning its constitutionality if an authoritative contrary legal determination has subsequently been made (for example, by the United States Supreme Court).
Consequently, § 1983 "does not provide relief against judges acting purely in their adjudicative capacity, any more than, say, a typical state's libel law imposes liability on a postal carrier or telephone company for simply conveying a libelous message." In re Justices ,
In Reynolds ,
By contrast, in Georgevich , the Court of Appeals permitted suit to go forward against certain state court judges who acted in an administrative capacity with respect to the parole system. The court observed that "[t]he Pennsylvania statutory arrangement divides the authority to make parole decisions between the sentencing judges and the Board."
This case clearly falls on the Reynolds side of the Reynolds / Georgevich divide.
Indeed, the federal courts have already considered this question in three substantially similar cases filed by two of the same plaintiffs here. In Edelglass v. New Jersey , No. 14-760,
[T]he actions of the Defendant Judges in applying [the best interests of the child] standard to the Plaintiffs' custody disputes is in the nature of an adjudicative function. Similarly, the fact that several of the 'laws' concerning adequate notice, the right to counsel, and the right to a plenary hearing are not embodied in legislative enactments, but rather in court rules promulgated by the New Jersey Supreme Court and in binding judicial decisions from appellate courts interpreting the relevant constitutional provisions, does not vest these Defendant trial court judges with any adversarial interest in defending the constitutionality of these rules of law.
Allen ,
The Allen and Edelglass cases were consolidated for appeal and the Third Circuit
Here, as in Allen , the plaintiffs-indeed, the same plaintiffs-broadly challenge the manner in which the New Jersey state courts make custody determinations. The judges, however, are not adversary parties: "a parent must initiate a custody dispute," and "the state court judges themselves do not have any right to initiate these actions." The defendant state court judges are not challenged in relation to "any administrative function," and "the [defendant] state court judges did not promulgate either the statutes or the judicial standards to which the plaintiffs object." In addition, "where the judge determines that there is a genuine issue as to a material fact relating to the custody dispute, a plenary hearing must be held, providing plaintiffs with additional procedural safeguards." Allen ,
Plaintiff Shaikh brought yet a third constitutional challenge to New Jersey's child custody dispute framework in this federal district court. In it, he asserted that "he suffered a violation of his due process rights under the Fourteenth Amendment because the New Jersey family court has the ability to modify his custody arrangement without holding a plenary hearing." Hagberg v. New Jersey ,
This case is identical to the earlier ones in every way that matters.
iv. Res Judicata (Claim Preclusion)
As noted, the current action is not the first time that Plaintiffs Malhan and Shaikh have asserted that the procedures for making custody determinations in New Jersey family court proceedings violate due process standards. See Hagberg v. New Jersey ,
In Section III.a.iii, supra , I treated the prior Allen , Edelglass , and Hagberg cases, affirmed by the Third Circuit, as persuasive authority. Actually, they are more than that. These were very similar actions brought by Malhan and Shaikh, two of the plaintiffs here, in which substantially similar claims were denied. If Count I had passed the § 1983 bar on suits against judges in their adjudicative capacities, I would dismiss the challenges to the adequacy of family court procedures, asserted against the state judges in Count I, on the alternative basis of res judicata as to Malhan and Shaikh.
"The federal courts have traditionally adhered to the related doctrines of res judicata and collateral estoppel. Under res judicata, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action. Under collateral estoppel, once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first case." Allen v. McCurry ,
The doctrine of res judicata (also known as claim preclusion) applies when three conditions are present: "(1) a final judgment on the merits in a prior suit involving (2) the same parties or their privies and (3) a subsequent suit based on the same cause of action." In re Mullarkey ,
I find that the § 1983 claims of Malhan and Shaikh that the New Jersey family court system violates federal due process standards is barred by the doctrine of claim preclusion. In Edelglass , Malhan, Shaikh, and a group of similarly situated plaintiffs sued several state court judges under § 1983 alleging "constitutional infirmities in the State of New Jersey's procedures for handling custody disputes between parents."
I start with the third claim preclusion requirement ("same cause of action"). Several factors bear on the determination of whether the causes of action are sufficiently alike: "(1) whether the acts complained of and the demand for relief are the same ...; (2) whether the theory of recovery is the same; (3) whether the witnesses and documents necessary at trial are the same ...; and (4) whether the material facts alleged are the same. It is not dispositive that a plaintiff asserts a different theory of recovery or seeks different relief in the two actions." Blunt v. Lower Merion Sch. Dist. ,
Shaikh and Malhan's due process claim in Edelglass involves the same cause of action as their due process claim here: both are claims under
2. [Plaintiffs seek declaratory and injunctive relief against defendants] who, under color of law, unconstitutionally interfered with the fundamental rights to the care, custody and control of children without a full hearing in violation of the Fourteenth Amendment.
...
19. Defendants have established policies, procedures, and precedents denying parents a full and prompt hearing when stripping one parent of physical and legal custody and giving full physical and legal custody to another parent. This is a clear violation of the Fourteenth Amendment to the United States' Constitution under color of law.
...
181. Malhan told the court that he wished to present evidence to refute the allegations made by Myronova, specifically he stated that he had audio recordings, photographs and videos which could document his ability to parent and would show that Myronova was lying. The court did not permit Malhan to present any evidence at this proceeding.
...
186. ...On April 1, [2011] the court still did not permit Malhan to cross examine Myronova and there was no plenary hearing.
...
278. New Jersey and individual Defendants violated the substantive andprocedural rights of Plaintiffs by interfering with the care, custody and control of minor children without affording Plaintiffs the most basic due process rights, including adequate notice, the right to counsel, the right to cross examine accusers, and the right to present evidence in one's defense.
Edelglass Complaint.
In several other paragraphs in the Edelglass Complaint Malhan repeatedly complains of not receiving a plenary hearing during his custody proceedings. Edelglass Complaint ¶¶ 187, 190, 191, 198, 201. The factual allegations involving Shaikh in the Edelglass Complaint are at times verbatim copies of the factual allegations in the current Complaint, both of which complain of not receiving a plenary hearing. Compare Edelglass / Allen Complaint ¶¶ 239-63, with Comp ¶¶ 396-438.
The district court's motion-to-dismiss opinion in Allen notes that it is "a substantially identical matter" to Edelglass . Allen , No. 14-0760,
The Complaint in the current case contains many of the same allegations made in the Edelglass / Allen Complaints noted above. See Section I (Factual Summary), supra . This satisfies the third claim preclusion requirement because Malhan and Shaikh's § 1983 claim here is plainly "a subsequent suit based on the same cause of action" as the prior suits. In re Mullarkey ,
Plaintiffs' constitutional claims do not become new for purposes of claim preclusion merely because they allege subsequent instances of the supposed constitutional violation that was initially litigated. "A suit can be claim precluded even if it is based in part on facts that occurred after the initial suit."
I turn to the first requirement (whether there was a Final judgment on the merits in a prior suit). Plaintiffs assert that the prior judgments were not on the merits because "none of the substantive issues were discussed." (DE 44 at 44). That is incorrect. The District Court in Edelglass dismissed Malhan's § 1983 claim on statute of limitations grounds, Edelglass ,
These substantial prior decisions constitute final judgments on the merits. See Singer v. Bureau of Prof'l & Occupational Affairs ,
Finally, I discuss the second requirement (same parties or their privies). Plaintiffs contend that the defendants in the prior suits were different. (DE 44 at 42). Specifically, Malhan stressed that he previously sued the prior judge assigned to his case, not the newly-assigned Judge Katz, "so the doctrine cannot possibly apply to Judge Katz." (Id. ). This argument ignores the fact that the second claim preclusion requirement applies not only to the same parties but also to their privies. In re Mullarkey ,
"Privity" is defined as "[t]he connection or relationship between two parties, each having a legally recognized interest in the same subject matter (such as a transaction, proceeding, or piece of property); mutuality of interest." Mayercheck v. Mayercheck/Tucciarone , No. 14-611,
In Edelglass , Malhan named as defendants two family part judges, Judge Maureen Sogluizzo and Judge Nanci Sivilli, who previously presided over his divorce and custody disputes. Edelglass Complaint ¶¶ 16, 180, 183, 195. He now names two family part judges, Judge Katz and Judge Kessler, who subsequently presided over his family court dispute. (Comp ¶¶ 15, 17, 37). In Allen , Shaikh named as a defendant the family part judge, Judge Einbinder, who presides over his family court proceedings. Compare 3:15-cv-3519 at DE 1 ¶¶ 11, 144 with Comp ¶¶ 400, 404, 410, 414-18.
The judges in this case stand in privity with the judges in Malhan and Shaikh's prior suits. See Taylor v. Sturgell ,
Because all three requirements for claim preclusion are satisfied, Malhan and Shaikh's § 1983 due process claim is barred by res judicata and would be dismissed with prejudice on this alternative basis.
v. The Workability of the Relief Sought
Defendants generally contend that the relief plaintiffs seek in Count I is unworkable. The relief sought, they say, is vague, and the implications wide-ranging.
Defendants first contend that it "is apparent from the recitation of the request for relief" in the Complaint that the requested order is inappropriate. Plaintiffs request that the Court permanently enjoin "the Defendants and all persons in concert with them, and their successors in office, from... refusing to provide parents with adequate notice and a meaningful hearing at a meaningful time following the removal of children from their homes by state officials in a manner consistent with the Due Process Clause." (Comp at pp. 104-05). As the defendants accurately point out, the judicial defendants "are already obligated by New Jersey law to abide by Due Process Clause requirements with respect to any litigants." (DE 42-1 at 50). Therefore, "this vague demand would merely require New Jersey state court judges to do what the law already requires them to do." (Id. ).
Moreover, to the extent that any state court litigant might claim that a state court judge failed to comply with all constitutional requirements, the state court system offers a full opportunity for a dissatisfied litigant to resort to the state appellate courts. The entry of such an order would almost certainly result in a flurry of federal suits that the rulings in state courts violated the federal order, with likely clarifications sought for the meanings of "adequate notice" and a "meaningful" hearing within a "meaningful" time. (Comp at pp. 104-05).
The U.S. Supreme Court has made clear that such a scenario is neither permissible, nor preferable. In O'Shea v. Littleton ,
An order that "would contemplate interruption of state proceedings to adjudicate assertions of noncompliance" with the order would be an impermissible "ongoing federal audit" of the state proceedings that would require a district court "to sit in constant day-to-day supervision" of state court judges.
Consequently, as an alternative ground for dismissal, I find that the relief plaintiffs seek in Count I is vague and unworkable, and therefore fails to state a claim for which relief could be granted pursuant to Fed. R. Civ. P. 12(b)(6).
vi. Right to Record (Count II)
Plaintiffs request that this Court enter a blanket order that permits litigants involved in family court disputes to record events that might be pertinent to their custody disputes. (See Comp ¶¶ 490-523). Specifically, plaintiffs seek a declaratory judgment "that declares as a matter of law
To begin with, I see no constitutional basis for the claim. There is no constitutional "right to record" as such. If people do not wish to be recorded, it is usually their prerogative to decline.
Defendants also correctly assert that this particular issue does not present an Article III case or controversy. (DE 42-1 at 55). See United States v. Thomas ,
The judicial defendants are not alleged to have entered any order or promulgated a policy forbidding the recording of interactions. One or more of the other defendants, in plaintiffs' view, have at times resisted the recording of their interactions with the plaintiffs (usually unsuccessfully, or only to relent later).
Moreover, plaintiffs' requested relief is too broad and non-specific to sufficiently state a claim. Issuing such a wide-ranging order for all "parents in a custody dispute" involving all interactions involving their children is inappropriate. It is unworkable in light of uncertainty as to where, to whom, and under what circumstances it would apply. Consequently, this claim is dismissed for failure to state a claim and for lack of subject matter jurisdiction.
This dismissal of Count II is without prejudice.
vii. Claim of retaliation against Judge Kessler (Count V)
Count V is a composite of claims, one of which is Malhan's claim of "retaliation" against Judge Kessler. It must be dismissed on the grounds stated in Section III.a.iii, supra (judges not proper § 1983 defendants). It must also be dismissed based on this judicial officer's absolute immunity from claims for monetary damages. (DE 42-1 at 56; Comp ¶¶ 558-80). Consequently, I will dismiss Count V as to Judge Kessler with prejudice.
Judges have absolute judicial immunity from suit for compensatory or punitive damages based on the performance of their judicial functions. Briscoe v. LaHue ,
Malhan alleges that Judge Kessler's retaliation took the form of adverse rulings in his case. A judge, however, "will not be deprived of immunity because the action he [or she] took was in error, was done maliciously, or was in excess of his [or her] authority; rather, he [or she] will be subject to liability only when he [or she] has acted in the clear absence of all jurisdiction." Azubuko ,
Count V is therefore dismissed as to Judge Kessler based on absolute judicial immunity. Because amendment would be futile, this dismissal is with prejudice.
viii. Claims Against the DCPP
The New Jersey Division of Child Protection and Permanency ("DCPP") asserts that the claims against it ought to be dismissed because it has sovereign immunity from any claims of alleged wrongful conduct within the context of the plaintiffs' state court litigation. (DE 42-1 at 58). I agree.
DCPP is an arm of the state for Eleventh Amendment and sovereign immunity purposes. Howard v. New Jersey Div. of Youth & Family Servs. ,
The claims against DCPP are therefore dismissed on Eleventh Amendment/sovereign immunity grounds. Because amendment would be futile, the dismissal is with prejudice.
The defendants assert that the Complaint contains no allegations of any conduct by New Jersey Attorney General Grewal with respect to the family court proceedings in question, and therefore does not set forth a claim against him. (DE 42-1). The plaintiffs do not explain what role, if any, Attorney General Grewal played in their alleged grievances or would play if they were granted the relief that they seek. The explanation in the plaintiffs' brief does nothing to clear it up: "Attorney General Grewal, in his official capacity as the official charged with defending State Policies and procedures, is properly named as a defendant, although he is largely the 'nominal' defendant." (DE 44 at 46).
In short, the Complaint fails to allege factually what AG Grewal supposedly did wrong, how he or his actions connect to any of the causes of action, or what effective relief could or should be ordered as against him. The Complaint thus fails to plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal ,
b. Soaring Heights' Motion to Dismiss
Soaring Heights separately moves to dismiss Count VI, the only count in which it is named, for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) and for improper joinder pursuant to Fed. R. Civ. P. 20. (DE 43). I agree that Malhan has failed to state a claim against Soaring Heights.
Malhan is the only plaintiff who asserts a claim against Soaring Heights. While not denominated as such, it appears to be a section 1983 Monell claim. (Comp. ¶¶ 580-86). This claim is based on the incident in which Soaring Heights, on advice of its counsel, refused to let Malhan pick up his children from the school because of the ambiguity it perceived in the family court's November 2017 Order. See Subsection I.b.i, supra . The relief sought is damages.
Preliminarily, and most directly, I rule that no constitutional claim has been stated. The family court's November 2017 Order had relaxed restrictions on Malhan's custody. After a transitional period, Malhan was to have "unsupervised parenting time with the children on Tuesdays after school until Friday mornings at school drop-off," and that "[t]he remaining days will be parenting time for [Myronova]." (Comp ¶¶ 157, 165). The same Order, however, provided that "[t]ransfers of the children between [Malhan] and [Myronova] will continue to take place at the Bayonne Police Station."
On December 12, 2017 (a Tuesday), Myronova brought the children to school in the morning. Malhan sought to pick them up in the afternoon, but the school refused. The attorney for Soaring Heights explained that the November 2017 Order was ambiguous: Could the school release the children to Malhan, or were transfers required to take place at the Bayonne police station?
Myronova's dropping off the children at school, to be picked up in the afternoon by Malhan, could very plausibly be deemed a transfer of custody between the parents that did not take place at the Bayonne Police Station. It is possible that the family court intended Myronova to pick up the children from school and then transfer custody
I can find no substantive violation of constitutional rights here. The ambiguity in the order is genuine. No prudent school, particularly given the bitterly disputed issue of custody here, would transfer the child from one parent to the other without clarification.
Setting that aside, however, I find that the school would not properly be held liable under Monell standards. The actions here were actions of the school's (unidentified) attorney or possibly its employees. The entity sought to be held liable as a municipal entity is the school itself.
A municipality may be held liable under § 1983, however, only "if the plaintiff identifies a municipal 'policy' or 'custom' that was the 'moving force' behind the injury." Jewell v. Ridley Twp. ,
A policy is made when a decisionmaker possessing final authority to establish municipal policy with respect to the action issues a final proclamation, policy or edict. A custom is an act that has not been formally approved by an appropriate decisionmaker, but that is so widespread as to have the force of law.
Natale ,
For purposes of a Monell claim, "to ascertain if an official has final policy-making authority, and can thus bind the municipality by his [or her] conduct, a court must determine (1) whether, as a matter of state law, the official is responsible for making policy in the particular area of municipal business in question, and (2) whether the official's authority to make policy in that area is final and unreviewable ." Hill v. Borough of Kutztown ,
The "policy" alleged here is some school policy regarding the pickup of children, which is hypothesized but not described further. If the relevant policy is that "students shall not be released in violation of a court order," I decline to impose liability on that basis.
In short, no constitutional violation is alleged. Even assuming that one existed, the Complaint does not sufficiently allege a claim for the school's Monell liability. Soaring Heights' motion to dismiss is therefore granted.
The remaining question is whether this dismissal should be with or without prejudice. Plaintiffs have already amended their complaint three times. (DE 1; DE 7; DE 19; DE 45). Plaintiffs were alerted to these issues by Soaring Heights' motion to dismiss a prior iteration of the complaint. At one point, Plaintiffs wrote that they "ha[d] amended their Complaint to allege more explicitly that actions taken by Defendant Soaring Heights, were made pursuant to school policies as well as that the decisions were made or approved by individuals with final policy making authority." (DE 20 at 1). Because granting further leave to amend would be futile, this dismissal is with prejudice. Alston v. Parker ,
IV. Conclusion
For the reasons set forth above, I will grant the State Defendants' motion to dismiss (DE 42) and grant Soaring Heights' motion to dismiss (DE 43) as described in this Opinion and the accompanying Order.
Notes
Certain abbreviations will be used herein:
"DE ___" = Docket Entry in this case "Comp" = Third Amended Complaint (DE 45)
I say "factual" advisedly. The Complaint is rife with legal conclusions and analysis. (See, e.g. , Comp ¶¶ 275, 354, 439-50, 473-79, 522). The Court is not bound to accept these legal conclusions and will not assume their truth for purposes of this motion. Bell Atl. Corp. v. Twombly ,
Due to paragraph numbering errors in the Complaint, I will refer to the page number of the Complaint when necessary for clarity. The page number I use corresponds to the pages assigned through the Electronic Court Filing system.
The inclusion of the phrase "at school let out" becomes relevant in light of the allegations against Soaring Heights. See Subsection I.b.ii, infra .
The reference is to Rooker v. Fidelity Trust Co. ,
Plaintiffs explicitly state in their brief that their grievance is with the alleged "ongoing violations of due process by the defendants" generally and not the particular orders in their family court matters. (See DE 44 at 38 ("Plaintiffs do not seek to vacate or reverse any existing state court decisions or even orders, custody or otherwise.")).
In the Allen appeal upholding the dismissal of two of the prior cases, the Court described the New Jersey courts' policy regarding hearings:
[A] plenary hearing is not required in every contested motion in New Jersey state court; a trial judge has discretion to decide such a motion without a hearing, [citing Shaw v. Shaw ,, 138 N.J. Super. 436 , 376 (Ct. App. Div. 1976) ]. "It is only where the affidavits show that there is a genuine issue as to a material fact, and that the trial judge determines that a plenary hearing would be helpful in deciding such factual issues, that a plenary hearing is required." [citing 351 A.2d 374 id. ; Lepis v. Lepis ,, 83 N.J. 139 , 55 (1980) ]. 416 A.2d 45
Allen ,
The reference is to Younger v. Harris ,
The issue is distinct from that of judicial immunity, but not unrelated.
The U.S. Court of Appeals for the Third Circuit has twice recognized In re Justices as the "seminal case" in this area. See Brandon E. ex rel. Listenbee v. Reynolds ,
The rationale for this holding is also based on prudential concerns over the institutional neutrality of the judiciary. "To require the Justices unnecessarily to assume the role of advocates or partisans on these issues would tend to undermine their role as judges. To encourage or even force them to participate as defendants in a federal suit attacking Commonwealth laws would be to require them to abandon their neutrality and defend as constitutional the very laws that the plaintiffs insist are unconstitutional-laws as to which their judicial responsibilities place them in a neutral posture." In re Justices ,
This case stands on a different footing, however, from two of the other federal suits Malhan brought in which he challenged a gag order that the state court judge issued during his custody dispute. See Argen v. Kessler , No. 18-963 (KM),
The claim-preclusive implications of those earlier actions are addressed in Subsection III.a.iv., immediately following.
Defendants do not separately analyze the doctrines of claim and issue preclusion, but instead assert in a catchall fashion that "res judicata and/or collateral estoppel bar the claims by Malhan and Shaikh." (DE 42-1 at 52-54; DE 46 at 14). It is fair to say, however, that their analysis centers around the doctrine of claim preclusion. (See DE 42-1 at 54 ("Malhan and Shaikh appear to be asserting nearly identical claims to those previously made, and dismissed, in those Plaintiffs' prior federal court actions that concerned custody decisions in their state court cases." (emphasis in original))). Consequently, I put aside the issue preclusion inquiry and focus solely on claim preclusion.
It is therefore to be contrasted with a damages case alleging new and distinct damages that later arose from conduct that was already litigated. See Holland v. Cty. of Los Angeles , No. 12-0461,
Shaikh also brought suit in Hagberg against the State of New Jersey, then-Govemor Christie, then-Attorney General Porrino, the Clerk of the New Jersey Superior Court, and New Jersey Supreme Court Chief Justice Rabner. Hagberg ,
Shaikh initially filed the Hagberg action against Judge Marlene Lynch Ford, a New Jersey Superior Court Judge who presided over his custody proceedings at the time.
The District Court in Hagberg provided a reasoned analysis as to why Shaikh's due process claim under the Fourteenth Amendment ought to be dismissed and why Shaikh was not entitled to a plenary hearing for every contested motion in New Jersey state court. Id. at *7, *9-10. The Third Circuit affirmed that dismissal with its own detailed analysis. Hagberg ,
Malhan did allege that Ms. Daru of Peaceful Healing told him that he was not allowed to record their supervised visit. See Subsection II.b.ii., supra . However, this did not stop Malhan from recording and he does not allege that there were any direct injuries as a result of him recording their encounter. Id. This is not enough to allege an injury in fact for standing purposes.
To the extent the claim against DCPP involves the incident where it refused to allow Malhan to have an attorney present for a psychological evaluation, existing authority suggests that this is not a constitutional violation. See State v. P.Z ,
Charter schools are treated a municipal entities which may in theory be liable under § 1983 for their employees' actions pursuant to Monell.
Moreover, based on Monell and its progeny, several district courts in the Third Circuit have held that charter schools are liable to suit under § 1983. Schienblum v. Lehigh Valley Charter Sch. for the Arts , No. 15-6433,, at **4 (E.D. Pa. Dec. 20, 2016) ; Dupell v. Franklin Towne Charter Sch. , No. 16-278, 2016 WL 7429192 , at *6 (D.N.J. Dec. 2, 2016) ; Pocono Mountain Charter Sch. v. Pocono Mountain Sch. Dist. , 2016 WL 7042068 , 604-05 (M.D. Pa. 2012) ; Irene B. v. Phila. Acad. Charter Sch. , No.02-1716, 908 F. Supp. 2d 597 , at *11 (E.D. Pa. Jan. 29, 2003) ; 2003 WL 24052009
....
Afrika v. Khepera Charter Sch. , No. 16-5298,