NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 18-1656

______________________

ASSEM A. ABULKHAIR,

 Appellant

v.

OFFICE OF ATTORNEY ETHICS; STATE OF NEW JERSEY; 

CHARLES CENTINARO; STEVEN P. ROSS; PAULA T. GRANUZZO

____________________________________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil Action No. 2:16-cv-03767)

District Judge: Honorable Kevin McNulty

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

October 12, 2018

Before: JORDAN, RESTREPO and SCIRICA, Circuit Judges

(Opinion filed: October 18, 2018)

___________

OPINION*

___________

 * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

PER CURIAM

Assem Abulkhair, a frequent filer in the federal courts,1 appeals pro se from the 

District Court’s orders dismissing his amended complaint and denying his motion for a 

default judgment. For the reasons that follow, we will affirm those orders.

I.

Because we write primarily for the parties, we discuss the background of this case 

only to the extent needed to resolve this appeal. On June 23, 2017, Abulkhair filed an 

amended civil rights complaint in the District Court against the State of New Jersey, the 

New Jersey Supreme Court’s Office of Attorney Ethics (“the OAE”),

2 the OAE’s 

Director, and two OAE investigators. That pleading alleged numerous violations under 

federal and state law, all of which related to the defendants’ handling of a grievance that 

Abulkhair had filed against his former attorney. 

The defendants obtained two extensions of time to respond to the amended 

complaint. On September 21, 2017, twenty days after the second extended deadline had 

expired, the defendants moved to dismiss the amended complaint. Abulkhair then filed a 

cross-motion, seeking to enter a default judgment against the defendants based on their 

failure to act before the deadline. On March 15, 2018, the District Court granted the 

defendants’ motion to dismiss. In doing so, the District Court concluded that the 

 1 In this Court alone, Abulkhair has brought more than two dozen cases.

2 The OAE is an “arm” of the New Jersey Supreme Court. See Robertelli v. N.J. Office 

of Att’y Ethics, 134 A.3d 963, 967 (N.J. 2016).
3

Eleventh Amendment barred certain claims against the State and the OAE, as well as 

certain claims brought against the other three defendants in their official capacities. As

for the remaining claims, the District Court concluded that they failed to state a claim 

upon which relief can be granted. The District Court concluded that amendment of the 

claims against the State and the OAE would be futile, so the District Court dismissed 

those defendants with prejudice. However, the District Court dismissed the other three 

defendants without prejudice to Abulkhair’s ability to file a second amended complaint

within thirty days. The District Court’s opinion accompanying its March 15, 2018 order 

also rejected Abulkhair’s motion for a default judgment. Although the March 15, 2018 

order itself did not rule on the default-judgment motion, the District Court entered an 

order on March 23, 2018, explicitly denying that motion.

Abulkhair chose not to file a second amended complaint. Instead, he brought this 

appeal.

II.

We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.3

 We exercise 

de novo review over the District Court’s March 15, 2018 dismissal order, see Estate of 

Lagano v. Bergen Cty. Prosecutor’s Office, 769 F.3d 850, 853 (3d Cir. 2014), and we 

 3 Our jurisdiction under § 1291 is limited to reviewing “final” orders of the district courts. 

See 28 U.S.C. § 1291. Although the District Court’s March 15, 2018 order dismissed 

some of the defendants without prejudice to Abulkhair’s ability to file a second amended 

complaint, that order is nevertheless “final” under § 1291 because Abulkhair did not file 

a second amended complaint within the time provided by the District Court. See Batoff 

v. State Farm Ins. Co., 977 F.2d 848, 851 n.5 (3d Cir. 1992).
4

review its March 23, 2018 order denying a default judgment for abuse of discretion, see

Chamberlain v. Giampapa, 210 F.3d 154, 164 (3d Cir. 2000).

Abulkhair’s briefing focuses on the Eleventh Amendment. Specifically, he argues

that the Eleventh Amendment is a “delusional amendment” that “does [NOT] exist within 

the ‘State of New Jersey.’” (Abulkhair’s Opening Br. 2; Abulkhair’s Reply Br. 3 

(brackets and internal quotation marks in original).) This argument is indisputably 

meritless and we need not discuss it further. To the extent that Abulkhair’s briefing could 

liberally be construed as challenging the District Court’s application of the Eleventh 

Amendment to this case, such a challenge does not warrant any relief here. For 

substantially the reasons provided by the District Court in its thorough analysis, we see 

no reason to revive any of the claims that were dismissed on Eleventh Amendment 

grounds. As for the claims that the District Court dismissed on other grounds, Abulkhair 

has waived those claims. See Laborers’ Int’l Union of N. Am., AFL-CIO v. Foster 

Wheeler Corp., 26 F.3d 375, 398 (3d Cir. 1994) (“An issue is waived unless a party raises 

it in [his] opening brief, and for those purposes a passing reference to an issue . . . will 

not suffice to bring that issue before this court.”) (ellipses in original) (internal quotation 

marks omitted); see also Emerson v. Thiel Coll., 296 F.3d 184, 190 n.5 (3d Cir. 2002) 

(per curiam) (applying waiver doctrine to pro se case).

Although Abulkhair has preserved his challenge to the District Court’s denial of 

his motion for a default judgment, that challenge lacks merit. We have adopted a policy 

that disfavors default judgments and encourages adjudicating cases on the merits. See
5

McMullen v. Bay Ship Mgmt., 335 F.3d 215, 217-18 (3d Cir. 2003). “Three factors 

control whether a default judgment should be granted: (1) prejudice to the plaintiff if 

default is denied, (2) whether the defendant appears to have a litigable defense, and 

(3) whether defendant’s delay is due to culpable conduct.” Chamberlain, 210 F.3d at 

164. In this case, Abulkhair has not shown that he was prejudiced by the District Court’s 

denial of a default judgment. Furthermore, the defendants in this case had a litigable 

defense, and Abulkhair has not established that their twenty-day delay in filing their 

motion to dismiss was due to culpable conduct. See Hritz v. Woma Corp., 732 F.2d 

1178, 1182-83 (3d Cir. 1984) (explaining that “culpable conduct” means “willfulness” or 

“bad faith,” and does not include mere negligence). Accordingly, the District Court did 

not err in denying Abulkhair’s motion for a default judgment.

In light of the above, we will affirm the District Court’s March 15, 2018 and 

March 23, 2018 orders. To the extent that Abulkhair asks us to impose sanctions against 

the defendants’ attorney, that request is meritless and is hereby denied.