UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

 

 :

PHYLLIS GIANNINI and :

JOSEPH ROBERT GIANNINI, : Civ. A. No. 11-3542 (NLH)(AMD)

Plaintiffs, :

:

v. :

: OPINION

BARRY W. ROSENBERG and :

and JOHN M. PALM, :

:

Defendants. :

 

APPEARANCES:

JOSEPH ROBERT GIANNINI

925 SOUTH WESTGATE AVENUE

#102

LOS ANGELES, CA 90049 

On behalf of plaintiff Phyllis Giannini and himself pro se

ROSS BEGELMAN

BEGELMAN & ORLOW, P.C.

411 ROUTE 70 EAST

SUITE 245

CHERRY HILL, NJ 08034 

On behalf of defendant Barry W. Rosenberg

BRIAN P. WILSON

STATE OF NEW JERSEY

OFFICE OF THE ATTORNEY GENERAL

DIVISION OF LAW

25 MARKET STREET

P.O. BOX 112

TRENTON, NJ 08625 

On behalf of defendant John M. Palm

HILLMAN, District Judge

 Plaintiffs Phyllis Giannini and her brother, a New Jersey

licensed attorney, Joseph Giannini, claim that defendant Barry W.

Rosenberg committed legal malpractice in his representation of

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the Mara Court Homeowners Association, of which Ms. Giannini was

a member and past president. On behalf of the homeowners

association, Rosenberg filed a New Jersey state court action

against Ms. Giannini and two other past presidents for the

reimbursement of payments to them that had not been sanctioned by

the association’s by-laws. Mr. Giannini represented his sister

in that case. Plaintiffs claim that Rosenberg had a 25-year

attorney/client relationship with Ms. Giannini, because through

his representation of the association, he also represented her. 

Plaintiffs allege that Rosenberg committed malpractice by suing

his own client - Ms. Giannini. Plaintiffs also contend that

Rosenberg suborned perjured testimony by the association’s

current president, and committed fraud on the court. 

Plaintiffs also claim that Rosenberg conspired with

defendant John M. Palm, Secretary of the District IV Ethics

Committee for the New Jersey Office of Attorney Ethics, to

violate plaintiffs’ constitutional rights when Rosenberg filed an

ethics complaint against Mr. Giannini. After a bench trial in

the association’s state court action to recoup fees from Ms.

Giannini, the state court judge found in favor of the

association, and ordered Ms. Giannini to repay the association. 

The judge also awarded counsel fees to the association. As

Rosenberg attempted to collect on the judgment entered against

Ms. Giannini, Mr. Giannini filed motions to set aside the

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judgment. Related to Mr. Giannini’s efforts to set aside the

judgment, Rosenberg filed an ethics complaint against Mr.

Giannini with the New Jersey Office of Attorney Ethics. Mr.

Giannini then filed an ethics complaint against Rosenberg. 

Plaintiffs claim that the ethics complaint filed by

Rosenberg against Mr. Giannini was a sham in order to cover up

his obstruction of justice and fraud on the court. Because

Rosenberg’s wife is a New Jersey Superior Court judge, and he

feels he is shielded by his wife’s robe, plaintiffs contend that

Rosenberg conspired with Palm to inappropriately pursue the

investigation into Mr. Giannini’s conduct, and to inappropriately

delay Mr. Giannini’s complaint against Rosenberg. Plaintiffs

allege that this conduct violated their due process and equal

protection rights. The ethics complaint against Mr. Giannini has

not reached its ultimate resolution.1

Defendants have moved to dismiss plaintiffs’ claims against

them on various bases. Rosenberg has also filed a motion for 2

In his motion for sanctions, Rosenberg attached a September 1

14, 2011 decision from the Ethics Panel that issued a decision

recommending Mr. Giannini receive a reprimand. In his opposition

to Rosenberg’s motion to dismiss, Mr. Giannini represents that he

is appealing that decision and the matter is still pending.

Plaintiffs originally filed suit against Rosenberg, Palm, 2

and Charles Centinaro, the Director of the New Jersey Office of

Attorney Ethics. After Palm and Centinaro filed their motion to

dismiss plaintiffs’ complaint, plaintiffs filed an amended

complaint, which removed Centinaro as a defendant. Procedurally,

the filing of plaintiffs’ amended complaint mooted Palm and

Centinaro’s motion to dismiss. Instead of refiling a new motion

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sanctions against plaintiffs for filing a frivolous lawsuit. 

Plaintiffs have opposed both motions. For the reasons expressed

below, the Court will abstain from considering plaintiffs’ claims

regarding defendants’ alleged conspiracy, deny the motion for

sanctions, and decline to exercise supplemental jurisdiction over

plaintiffs’ state law legal malpractice claims. 

DISCUSSION

A. Jurisdiction

Plaintiffs have brought their claims pursuant to 42 U.S.C.

§§ 1983, 1985(2) and 1986, as well as pursuant to New Jersey

state law. This Court has jurisdiction over plaintiffs’ federal

claims under 28 U.S.C. § 1331, and supplemental jurisdiction to

hear plaintiffs’ state law claims under 28 U.S.C. § 1367. 

3

B. Motion to Dismiss Standard

When considering a motion to dismiss a complaint for failure

to state a claim upon which relief can be granted pursuant to

Fed. R. Civ. P. 12(b)(6), a court must accept all well-pleaded

to dismiss the amended complaint, however, in his reply in

further support of his motion to dismiss the original complaint,

Palm argues that plaintiffs’ amended complaint should be

dismissed for the same reasons as the first complaint. The Court

will construe Palm’s reply to be his motion to dismiss

plaintiffs’ amended complaint. Because Rosenberg did not file

his motion to dismiss until after plaintiffs’ filed their amended

complaint, this issue does not affect his motion. 

As stated, however, the Court will ultimately decline to 3

exercise supplemental jurisdiction over plaintiffs’ claims

arising under state law.

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allegations in the complaint as true and view them in the light

most favorable to the plaintiff. Evancho v. Fisher, 423 F.3d

347, 351 (3d Cir. 2005). It is well settled that a pleading is

sufficient if it contains “a short and plain statement of the

claim showing that the pleader is entitled to relief.” Fed. R.

Civ. P. 8(a)(2). Under the liberal federal pleading rules, it is

not necessary to plead evidence, and it is not necessary to plead

all the facts that serve as a basis for the claim. Bogosian v.

Gulf Oil Corp., 562 F.2d 434, 446 (3d Cir. 1977). However,

“[a]lthough the Federal Rules of Civil Procedure do not require a

claimant to set forth an intricately detailed description of the

asserted basis for relief, they do require that the pleadings

give defendant fair notice of what the plaintiff’s claim is and

the grounds upon which it rests.” Baldwin County Welcome Ctr. v.

Brown, 466 U.S. 147, 149-50 n.3 (1984) (quotation and citation

omitted). 

A district court, in weighing a motion to dismiss, asks

“‘not whether a plaintiff will ultimately prevail but whether the

claimant is entitled to offer evidence to support the claim.’” 

Bell Atlantic v. Twombly, 127 S. Ct. 1955, 1969 n.8 (2007)

(quoting Scheuer v. Rhoades, 416 U.S. 232, 236 (1974)); see also

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (“Our decision in

Twombly expounded the pleading standard for ‘all civil actions’ .

. . .”); Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.

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2009) (“Iqbal . . . provides the final nail-in-the-coffin for the

‘no set of facts’ standard that applied to federal complaints

before Twombly.”). 

Following the Twombly/Iqbal standard, the Third Circuit has

instructed a two-part analysis in reviewing a complaint under

Rule 12(b)(6). First, the factual and legal elements of a claim

should be separated; a district court must accept all of the

complaint's well-pleaded facts as true, but may disregard any

legal conclusions. Fowler, 578 F.3d at 210 (citing Iqbal, 129 S.

Ct. at 1950). Second, a district court must then determine

whether the facts alleged in the complaint are sufficient to show

that the plaintiff has a “‘plausible claim for relief.’” Id.

(quoting Iqbal, 129 S. Ct. at 1950). A complaint must do more

than allege the plaintiff's entitlement to relief. Id.; see also

Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008)

(stating that the “Supreme Court's Twombly formulation of the

pleading standard can be summed up thus: ‘stating . . . a claim

requires a complaint with enough factual matter (taken as true)

to suggest’ the required element. This ‘does not impose a

probability requirement at the pleading stage,’ but instead

‘simply calls for enough facts to raise a reasonable expectation

that discovery will reveal evidence of’ the necessary element”). 

A court need not credit either “bald assertions” or “legal

conclusions” in a complaint when deciding a motion to dismiss. 

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In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429-30

(3d Cir. 1997). The defendant bears the burden of showing that

no claim has been presented. Hedges v. U.S., 404 F.3d 744, 750

(3d Cir. 2005) (citing Kehr Packages, Inc. v. Fidelcor, Inc., 926

F.2d 1406, 1409 (3d Cir. 1991)).

Finally, a court in reviewing a Rule 12(b)(6) motion must

only consider the facts alleged in the pleadings, the documents

attached thereto as exhibits, and matters of judicial notice. 

Southern Cross Overseas Agencies, Inc. v. Kwong Shipping Group

Ltd., 181 F.3d 410, 426 (3d Cir. 1999). A court may consider,

however, “an 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.” Pension Benefit Guar. Corp.

v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.

1993). If any other matters outside the pleadings are presented

to the court, and the court does not exclude those matters, a

Rule 12(b)(6) motion will be treated as a summary judgment motion

pursuant to Rule 56. Fed. R. Civ. P. 12(b).

C. Analysis

The United States Supreme Court directs that this Court

should abstain from considering plaintiffs’ claims that arise out

of the ongoing attorney ethics complaint filed by Rosenberg

against Mr. Giannini. In Middlesex County Ethics Committee v.

Garden State Bar Ass'n, 457 U.S. 423, 429 (1982), ethics

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complaints were filed against three New Jersey lawyers, and the

state ethics board determined after an investigation that the

lawyers violated the rule of professional conduct that prohibits

extrajudicial statements by lawyers associated with the

prosecution or defense of a criminal matter. Instead of filing

an answer to the charges in accordance with the New Jersey Bar

disciplinary procedures, the lawyers filed suit in the United

States District Court for the District of New Jersey contending

that the disciplinary rules violated their First Amendment

rights. Middlesex, 457 U.S. at 429. The district court

dismissed the case based on Younger v. Harris, 401 U.S. 37

(1971), concluding that “[t]he principles of comity and

federalism dictate that the federal court abstain so that the

state is afforded the opportunity to interpret its rules in the

face of a constitutional challenge.” Id. The Third Circuit

Court of Appeals reversed. Id.

On appeal, the Supreme Court reversed the Third Circuit. 

The Court first reiterated the impetus behind Younger and its

progeny - that there exists a strong federal policy against

federal court interference with pending state judicial

proceedings absent extraordinary circumstances. Id. at 431

(citing Younger v. Harris, 401 U.S. 37, 44 (1971) (explaining

that the notion of “comity” includes “a proper respect for state

functions, a recognition of the fact that the entire country is

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made up of a Union of separate state governments, and a

continuance of the belief that the National Government will fare

best if the States and their institutions are left free to

perform their separate functions in their separate ways.”)). 

Under Younger, “where vital state interests are involved, a

federal court should abstain unless state law clearly bars the

interposition of the constitutional claims.” Id. at 432

(citations and quotations omitted).

The Supreme Court then recognized the “important state

obligation to regulate persons who are authorized to practice

law,” which New Jersey expresses “in a state constitutional

provision vesting in the New Jersey Supreme Court the authority

to fix standards, regulate admission to the bar, and enforce

professional discipline among members of the bar.” Id. at 433

(citing N.J. Const., Art. 6, § 2, ¶ 3). The Court noted that

the New Jersey Supreme Court considers that filing a complaint

with the local Ethics and Grievance Committee “is in effect a

filing with the Supreme Court,” and that “[i]t is clear beyond

doubt that the New Jersey Supreme Court considers its bar

disciplinary proceedings as ‘judicial in nature.’” Id.

(citations omitted). The Supreme Court continued, noting that

the State of New Jersey “has an extremely important interest in

maintaining and assuring the professional conduct of the

attorneys it licenses,” and that “the judiciary as well as the

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public is dependent upon professionally ethical conduct of

attorneys and thus has a significant interest in assuring and

maintaining high standards of conduct of attorneys engaged in

practice.” Id. at 434 (citations omitted).

When it analyzed the nature of the New Jersey state ethics

committee procedures and rules with the tenets of Younger, the

Supreme Court found that the federal court should abstain from

hearing the lawyers’ constitutional claims against the ethics

committee. The Supreme Court concluded, “So long as the

constitutional claims of respondents can be determined in the

state proceedings and so long as there is no showing of bad

faith, harassment, or some other extraordinary circumstance that

would make abstention inappropriate, the federal courts should

abstain.” Id. at 436.

This same finding applies to the case here. Mr. Giannini

contends that Rosenberg and state ethics committee member Palm

conspired to violate his due process and equal protection rights

with regard to the filing and prosecuting of Rosenberg’s ethics

complaint against him. Although the ethics panel issued a

recommendation that Mr. Giannini receive a reprimand, the ethics

case is still ongoing, as Mr. Giannini is appealing that finding. 

Additionally, Mr. Giannini’s motion to dismiss the ethics

complaint based on constitutional grounds was preserved for

review by the New Jersey Supreme Court. See N.J. Ct. R.

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1:20-4(e) (“All constitutional questions shall be held for

consideration by the Supreme Court as part of its review of any

final decision of the Board.”); N.J. Ct. R. 1:20-16(f); Def. Ex.

B, September 14, 2011 Ethics Panel decision, attached to Motion

for Sanctions.4

Thus, the New Jersey Supreme Court is currently tasked to

make two findings: (1) whether Mr. Giannini, in his capacity as a

New Jersey licensed attorney, violated New Jersey’s rules of

professional ethics and warrants the discipline recommended by

the ethics board; and (2) whether Mr. Giannini’s constitutional

rights were violated during that ethics complaint, investigation,

and hearing process. Mr. Giannini has not provided this Court

with any compelling reason why the New Jersey Supreme Court

cannot fairly or adequately opine on the ethics rules governing

New Jersey licensed attorneys, or the constitutionality of the

circumstances of Mr. Giannini’s ethics case. 

One concern raised by Mr. Giannini in his opposition brief

In consideration of this motion to dismiss, the Court 4

properly takes judicial notice of the September 14, 2011, New

Jersey ethics committee panel’s report and recommendation. See

Southern Cross Overseas Agencies, Inc. v. Kwong Shipping Group

Ltd., 181 F.3d 410, 426 (3d Cir. 1999); Animal Science Products,

Inc. v. China Nat. Metals & Minerals Import & Export Corp., 596

F. Supp. 2d 842, 855 (D.N.J. 2008) (citing Fed. R. Evid. 201(b))

(explaining that pursuant to or the purposes of final

disposition, either on merits or on procedural grounds, a federal

court may take judicial notice of facts “capable of accurate and

ready determination by resort to sources whose accuracy cannot

reasonably be questioned”).

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is that Rosenberg and Palm are not parties to the ethics case,

and therefore his claims against Rosenberg and Palm cannot be

vindicated there. Although that is technically true, Rosenberg’s

conduct is inextricably intertwined with Palm’s and the rest of

the ethics panel, such that any decision by the New Jersey

Supreme Court on the constitutionality of the ethics board’s

conduct will also be a finding on Rosenberg’s and Palm’s conduct. 

Indeed, Mr. Giannini’s constitutional violation claims against

Rosenberg and Palm are that Rosenberg conspired with Palm, a

member of the ethics board. This Court cannot parse out Mr.

Giannini’s claims against Rosenberg and Palm without

impermissibly interfering with pending state judicial proceedings

- a finding as to these defendants’ conduct would transcend this

case and improperly restrain the state court from making its own

findings.

Accordingly, this Court must abstain from considering

plaintiffs’ constitutional violation claims. Relatedly, because

Rosenberg’s motion for sanctions against plaintiffs requires this

Court to make decisions on the validity of plaintiffs’

constitutional violation claims, the Court must deny that motion. 

Finally, because the remaining claims of Ms. Giannini against

Rosenberg for legal malpractice arise solely under New Jersey

state law, and may also require the Court to delve into issues

implicated by the ethics dispute, the Court will decline to

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continue exercising supplemental jurisdiction over those claims,

and they will be dismissed. See 28 U.S.C. § 1367(c) (“The

district courts may decline to exercise supplemental jurisdiction

over a claim under subsection (a) if--(1) the claim raises a

novel or complex issue of State law, (2) the claim substantially

predominates over the claim or claims over which the district

court has original jurisdiction, (3) the district court has

dismissed all claims over which it has original jurisdiction, or

(4) in exceptional circumstances, there are other compelling

reasons for declining jurisdiction.”).

An appropriate Order will be entered.

Date: June 8, 2012 s/ Noel L. Hillman 

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.

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