NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 20-2244 ___________

ROBERT NEMETH, JR., United States, ex rel., Appellant

v.

OFFICE OF THE CLERK OF THE SUPERIOR COURT OF NEW JERSEY; ERIC S. HAUSMAN, Individually and Severally; LAW OFFICES OF STEVEN A. VARANO PC; OFFICE OF MIDDLESEX COUNTY SHERIFF; PAUL INNES, Individually and Severally; MILDRED SCOTT, Individually and Severally; MICHELLE M. SMITH, Individually and Severally; DOES 1-10; ROES 1-10 ____________________________________

On Appeal from the United States District Court for the District of New Jersey (D.N.J. Civil Action No. 3:19-cv-16809) District Judge: Honorable Freda L. Wolfson ____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a) December 2, 2020

Before: CHAGARES, PHIPPS and COWEN, Circuit Judges

(Opinion filed December 16, 2020) ___________

OPINION* ___________

PER CURIAM

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Pro se appellant Robert Nemeth, Jr., appeals the District Court’s dismissal of his

complaint, in which he raised various claims related to a state court foreclosure action.

For the reasons that follow, we will affirm the District Court’s judgment.

I.

Nemeth’s complaint stems from the foreclosure of a property he owned in Monroe

Township, New Jersey. Wells Fargo Bank initiated foreclosure proceedings on the

property against Nemeth and three others in New Jersey state court in 2012. In May

2015, Judge Paul Innes of the Chancery Division of the Mercer County Superior Court

ultimately entered a final judgment of foreclosure for over $370,000 after summary

judgment was granted in favor of Wells Fargo Bank. The property was authorized to be

sold at a sheriff’s sale after a writ of execution was filed in the Chancery Division of the

Middlesex County Superior Court. The writ of execution was signed by Michelle M.

Smith, the Clerk of the Superior Court, and states that it was witnessed by Judge Innes.

After Nemeth unsuccessfully appealed the foreclosure decision, see Wells Fargo

Bank, N.A. v. Nemeth, No. A-0928-15T3,

, at *1 (N.J. Super. Ct. App.

Div. July 10, 2017) (per curiam), the property was sold at a sheriff’s sale for $100 in

April 2019 to MTGLQ Investors, L.P. The Middlesex County Sheriff, Mildred Scott,

executed a sheriff’s deed of foreclosure in May 2019. The Law Offices of Steven A.

Varano, P.C., and Eric S. Hausman, an attorney at that firm, represented MTGLQ

Investors in securing a writ of possession to enforce the partnership’s right to the

property. In June 2019, Smith signed a writ of possession to the property to Wells Fargo

Bank or its assignee. The writ of possession was again signed by Smith, and states that it

2 was witnessed by a New Brunswick Superior Court judge who is not a party to this

proceeding. Nemeth alleges that he was served with the writ of possession and a notice

of eviction in July 2019.

Nemeth subsequently filed a complaint in the District Court in August 2019,

naming the Office of the Clerk of the Superior Court of New Jersey, Smith, Judge Innes,

the Office of the Middlesex County Sheriff, Scott, the Law Offices of Stephen A. Varano,

Hausman, and various unnamed individuals as defendants. The named defendants all

moved to dismiss Nemeth’s claims, and the District Court granted their motions,

dismissing Nemeth’s complaint with prejudice. Nemeth timely appealed.

II.

We have jurisdiction over this appeal pursuant to

We exercise

plenary review over the District Court’s dismissal of Nemeth’s claims.2 See Fowler v.

UPMC Shadyside,

(3d Cir. 2009). Dismissal is appropriate “if,

1 Nemeth named twenty unidentified “Doe” and “Roe” defendants in his complaint who were never served with process. Because these defendants were never served, they were never parties to the case within the meaning of Federal Rule of Civil Procedure 54(b). See Gomez v. Gov’t of Virgin Islands,

(3d Cir. 1989); United States v. Studivant,

, 674 n.2 (3d Cir. 1976). Accordingly, the District Court’s order is final and appealable, and we have jurisdiction over this appeal. See Gomez,

. 2 In our review, we consider the complaint, any “document integral to or explicitly relied upon” in framing the complaint, see Schmidt v. Skolas,

(3d Cir. 2014) (internal citation omitted), and any “undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff’s claims are based on the document,” see Pension Benefit Guar. Corp. v. White Consol. Indus., Inc.,

(3d Cir. 1993).

3 accepting all well-pleaded allegations in the complaint as true and viewing them in the

light most favorable to the plaintiff, a court finds that [the] plaintiff’s claims lack facial

plausibility.” Warren Gen. Hosp. v. Amgen Inc.,

(3d Cir. 2011).

III.

We agree with the District Court’s dismissal of Nemeth’s complaint with

prejudice.3 First, the District Court properly determined that the Office of the Clerk of

the Superior Court was entitled to Eleventh Amendment sovereign immunity on

Nemeth’s claims against it. Eleventh Amendment immunity protects a state or a state

agency from suit unless Congress has specifically abrogated the state’s immunity or the

state has waived its immunity. See Pennhurst State Sch. & Hosp. v. Halderman,

(1984); Karns v. Shanahan,

(3d Cir. 2018); see also Fitchik v.

N.J. Transit Rail Operations, Inc.,

(3d Cir. 1989) (“A state agency is

entitled to immunity from suit in a federal court under the eleventh amendment when a

judgment against it would have had essentially the same practical consequences as a

3 As the District Court noted, Nemeth’s claims are not a model of clarity, but we agree with the District Court’s construction of Nemeth’s complaint as seeking to bring various constitutional claims pursuant to

. Nemeth has argued that he “has an absolute right to select the law of the complaint, which is very specific as to

” rather than § 1983. See Appellant’s Br. at p. 49; see also Compl. at p. 9. “Public Law 39-26” appears to refer to the Civil Rights Act of 1866, which has been revised since its enactment and is currently codified at

. See Georgia v. Rachel,

(1966). Because Nemeth has made no allegations that could possibly state a cause of action under §§ 1981-82, the District Court properly proceeded to analyze his claims under § 1983, which permits individuals to bring actions for violations of their civil rights by state actors. See Benn v. Universal Health Sys., Inc.,

, 169-70 (3d Cir. 2004). Nemeth’s continued insistence on appeal that he can pursue all of his claims under “Public Law 39-26” is entirely unsupported.

4 judgment against the State itself.”) (citation and internal quotation marks omitted). The

Office of the Clerk of the Superior Court is a component of a state court, established by

the New Jersey Constitution in a unified state-based court system, see N.J. Const. Art. VI,

§ 7, ¶ 3, and is entitled to immunity under the Eleventh Amendment as an “arm” of the

state. See Chisolm v. McManimon,

(3d Cir. 2001) (analyzing the

factors for “whether an entity is an arm of the state and, therefore, entitled to Eleventh

Amendment immunity” and describing the “unification of the New Jersey court system”);

cf. Benn v. First Judicial Dist. of Pa.,

, 240 (3d Cir. 2005) (concluding that

the First Judicial District of Pennsylvania was entitled to Eleventh Amendment sovereign

immunity as “part of the unified judicial system subject to the control of the Supreme

Court”).

Nemeth has identified no waiver of immunity here, and his citation to

(d)(7)(B) — a provision which regulates tribal gaming ordinances —

has no relevance to whether Congress intended to abrogate New Jersey’s Eleventh

Amendment immunity in the context of this case. Nemeth also has not identified any

“prospective, declaratory, or injunctive relief governing an officer’s future conduct” that

could permit immunity to be waived under the doctrine of Ex parte Young. See MCI

Telecomm. Corp. v. Bell Atl. Pennsylvania,

(3d Cir. 2001). Rather,

although Nemeth claims that he seeks injunctive relief, in actuality, he seeks retrospective

relief in the form of a decree that the state court judgments related to his foreclosure are

unconstitutional. See Blanciak v. Allegheny Ludlum Corp.,

(3d Cir.

1996) (explaining that a litigant’s request for relief is not prospective where “specific

5 allegations target past conduct, and the . . . [litigant’s requested] remedy is not intended

to halt a present, continuing violation of federal law”).

Next, the District Court properly concluded that Judge Innes is entitled to absolute

judicial immunity in this case. See Stump v. Sparkman,

(1978)

(explaining that judges are not civilly liable for judicial acts); Azubuko v. Royal,

(3d Cir. 2006) (per curiam). Absolute judicial “immunity is overcome in

only two sets of circumstances,” either “for nonjudicial actions, i.e., actions not taken in

the judge’s judicial capacity,” or “for actions, though judicial in nature, taken in the

complete absence of all jurisdiction.” Mireles v. Waco,

(1991) (per

curiam).

Nemeth argues that Judge Innes acted beyond the scope of his jurisdiction in

entering a final judgment of foreclosure in his case. However, as the District Court

explained, Nemeth made no allegations that Judge Innes took any nonjudicial actions or

any actions “in the complete absence of all jurisdiction,” as Nemeth specifically

challenges the actions Judge Innes took in ruling on his foreclosure matter, a matter

within the scope of the Superior Court’s subject matter jurisdiction. See Figueroa v.

Blackburn,

(3d Cir. 2000) (explaining that “[a] judge will not be

deprived of immunity because the action he took is in error, was done maliciously, or was

in excess of his authority; rather, he will be subject to liability only when he has acted in

the clear absence of all jurisdiction” and that “[g]enerally, . . .where a court has some

subject matter jurisdiction, there is sufficient jurisdiction for immunity purposes”)

(citations and internal quotation marks omitted); see also N.J. Ct. R. 1:34-6(a).

6 Relatedly, for Nemeth’s claims against Smith for signing facially valid writs of

execution and possession related to the foreclosure of his property, she is also entitled to

absolute quasi-judicial immunity for her actions taken in her capacity as the Clerk of the

Superior Court. See Gallas v. Supreme Court of Pa.,

(3d Cir. 2000)

(providing absolutely quasi-judicial immunity for court administrative personnel who are

charged with carrying out facially valid court orders when a suit challenges the order).

Both the Office of the Middlesex County Sheriff and Scott are also entitled to

absolute quasi-judicial immunity for executing the facially valid deed of foreclosure

challenged by Nemeth. “In determining whether a government actor was fulfill[ing] a

quasi-judicial role at the court’s request, we take a functional approach to immunity” in

which “we examine the nature of the functions with which a particular official or class of

officials has been lawfully entrusted, and we seek to evaluate the effect that exposure to

particular forms of liability would likely have on the appropriate exercise of those

functions.” Russell v. Richardson,

(3d Cir. 2018) (internal quotation

marks and citations omitted). Although Nemeth alleged in his complaint that “the sheriff

and/or her representative intentionally prevented the participation in a bidding process by

anyone in the room full of bidders,” see Compl. at p. 14, this conclusory statement is

insufficient to allege that these defendants were not acting to lawfully execute an

authorized order. 4 See Russell,

.

4 Nemeth insists in his appellate filings that his vague allegations warranted discovery, which would have proved “bid-rigging.” See Appellant’s Br. at p. 43. Although Nemeth has repeatedly claimed that he personally witnessed “bid-rigging” at the sheriff’s sale of the property, he has never provided any details of how it occurred, such as how many

7 Nemeth’s constitutional claims against the Law Offices of Stephen A. Varano and

Hausman were also properly dismissed because nothing in Nemeth’s complaint suggests

that either defendant is a state actor for purposes of § 1983.5 See Benn v. Universal

Health Sys., Inc.,

, 169-70 (3d Cir. 2004).

Finally, the District Court did not abuse its discretion by declining to grant

Nemeth leave to amend his complaint; amendment would be futile under the

circumstances of this case. See Grayson v. Mayview State Hosp.,

(3d

Cir. 2002). Although Nemeth contests the dismissal of his claims, he has not provided

additional specific factual allegations in any of his appellate filings to suggest that his

claims should proceed.

Accordingly, we will affirm the judgment of the District Court.

buyers attempted to bid on the property or how these alleged buyers were prevented from doing so. See

In particular, Nemeth did not specifically allege how the Office of the Middlesex County Sheriff or Scott interfered in any way with the execution of the deed of foreclosure. 5 Additionally, because all of the defendants named by Nemeth were state and private officials and entities, the District Court properly concluded that Nemeth cannot pursue a Fifth Amendment claim against any defendant, as the Due Process Clause under the Fifth Amendment protects against federal governmental actions, not state actions. See Riley v. Camp,

, 972 n. 19 (11th Cir. 1997) (per curiam).

8