IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

GEORGE GREEN,

 Plaintiff,

v.

ISABELLA M. GREEN,

 Defendant.

HON. JEROME B. SIMANDLE

Civil No. 11-3116(JBS/JS)

OPINION

APPEARANCES:

Mr. George Green, pro se

27 Thornwood Dr.

Glassboro, NJ 08028-3019

William M. Tambussi, Esq.

Kristin Lee Van Arsdale, Esq.

BROWN & CONNERY, LLP

360 Haddon Avenue

P.O. Box 539

Westmont, NJ 08108

Attorneys for Defendant Isabella M. Green

SIMANDLE, Chief Judge:

I. INTRODUCTION

 This matter is before the Court on the motion of Plaintiff

George Green("Plaintiff" or "Mr. Green") to strike Defendant's

legally insufficient affirmative defenses [Docket Item 19], the

motion of Defendant Isabella M. Green ("Defendant" or "Mrs.

Green") for summary judgment [Docket Item 20] and Plaintiff's

cross motion for summary judgment [Docket Item 26]. For the

reasons discussed herein, the court will grant Defendant's motion

for summary judgment, deny Plaintiff's cross motion for summary

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judgment and dismiss as moot Plaintiff's motion to strike

Defendant's affirmative defenses. 

The instant action arises out of the Defendant filing a

motion in state court seeking to enforce her rights under a

Qualified Domestic Relations Order to a percentage of the

Plaintiff's retirement benefits. Since the order at issue is a

Qualified Domestic Relations Order as defined under the Employee

Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1056(d)(3),

the Defendant's state law claims are not preempted by ERISA and

Plaintiff's claims for declaratory and injunctive relief must be

dismissed.

II. BACKGROUND

The Plaintiff and the Defendant were lawfully married on

December 6, 1954. (Def.'s Statement of Facts at ¶ 1.) The

Defendant subsequently filed for a divorce on December 11, 1990. 

(Def.'s Statement of Facts at ¶ 1.) A final judgment of divorce

was entered on June 24, 1991. (Def.'s Ex. E, Final Judgment of

Divorce.) The final judgment of divorce provided that the

Defendant would be entitled to receive 45 percent of the

Plaintiff's pension. Specifically, the divorce order states:

4. [Mrs. Green] shall be entitled to receive forty-five

percent (45%) of the gross pension received by [Mr.

Green] by virtue of his retirement with the United States

Navy. A Qualified Domestic Relations Order shall be

drafted by counsel for [Mrs. Green].

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5. [Mrs. Green] shall be entitled to receive fifty

percent (50%) of the gross pension enjoyed by [Mr. Green]

by virtue of his retirement from the United States Postal

Service. A Qualified Domestic Relations Order shall be

drafted by counsel for [Mrs. Green]. 

(Def.'s Ex. E, Final Judgment of Divorce, at ¶¶4-5.)

After multiple amendments, the final Qualified Domestic

Relations Order was entered on February 22, 1993. This order

provides that Defendant Mrs. Green is the alternate payee of

Plaintiff's benefits from the United States Postal Service/Civil

Service Retirement System. The order provides the full name and

current and last known address of Plaintiff and lists the

Plaintiff as the participant of the plan. The order further

provides the full name and current and last known address of the

Defendant and lists her as the alternate payee. The order states

in pertinent part:

5C. This order applies to any and all monies receivable

by the participant from the United States Postal

Service/Civil Service Retirement System. It shall also

include and fully apply to and bind any successor plan or

additional monies subsequently received by the

participant.

5D. Allocated Percentage - The percentage of the gross

retirement benefits of the participant which became the

property interest of the alternate payee. The alternate

payee is entitled to receive directly from the pension a

monthly annuity benefit payable until the earlier of her

death or the death of the retirant. This monthly payment

to the alternate payee shall be forty-seven and one half

percent (47.5%) of the base monthly gross retirement

benefits payable to George Green as of June 24, 1991.

5E. In addition to that which is set forth in paragraph

D, above, the alternate payee shall participate in all

such increases/adjustments that are enjoyed by George

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Green. The property interest of the alternate payee and

these increases/adjustments shall be fifty percent (50%)

of all such increases/adjustments.

5F. Payment Beginning Date (for Alternate Payee) shall be

earliest date subsequent to the qualification of this

Domestic Relations Order when it is administratively

possible for the United States Postal Service/Civil

Service Retirement System to begin distribution of the

alternate payee.

...

7. This Order is entered pursuant to a Final Judgment of

Divorce entered on the 24th day of June, 1991. That

Judgment has not been modified or otherwise changed. 

That Judgment of Divorce has been made pursuant to the

Domestic Relation s [sic] law of the State of New Jersey,

which governs the division of marital property between

spouses.

8. Since it is intended that this Order shall qualify as

a Domestic Relations Order, the provisions hereof shall

be administered and interpreted in conformity with ERISA

and the Internal Revenue Code. The Court shall retain

jurisdiction to amend this Order only for purposes of

establishing or maintaining its qualification as a

Domestic Relations Order under ERISA and/or the Internal

Revenue Code, and either party may apply to the Court for

such amendment.

(Pl.'s Ex. E.)

This Qualified Domestic Relations Order was accepted by the

United States Office of Personnel Management ("OPM") and the

Defendant began and continues to receive monthly payments from

the Plaintiff's pension plan. (Pl.'s Answer to Def.'s Statement

of Undisputed Facts at ¶11 and Pl.'s Counter Statement of

Material Facts at ¶ 20.) 

Sometime later, Mrs. Green learned that Plaintiff's pension

had increased from $1,606 a month to $2,857 a month as a result

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of Plaintiff's service in the Navy; however, she was not

receiving an increased monthly payment. In September 2009,

Defendant applied to the Defense Finance and Accounting Service

for her portion of the Plaintiff's Navy retirement pay pursuant

to the Final Judgment of Divorce and Qualified Domestic Relations

Order. (Def.'s Statement of Facts at ¶ 12.) The Defense Finance

and Accounting Service informed the Plaintiff that his military

retired pay was in "non-pay status" and therefore no funds were

available for the Defendant. (Def.'s Statement of Facts at ¶

13.) 

Consequently, the Defendant then filed a motion to enforce

payment of the monies due to her from the Plaintiff's Navy

pension in New Jersey state court. (Def.'s Ex. G.) The

Plaintiff filed opposition to the motion and also filed a cross

motion seeking an order preventing the Defendant from requesting

any further form of relief or making any future claim to payment

from his military pension. (Def.'s Statement of Facts at ¶ 15.) 

The Superior Court of New Jersey, Chancery Division-Family Part

held that the Defendant was entitled to an increased monthly

payment from Plaintiff's pension. Specifically, the court found:

Since [Mr. Green] retired from the U.S. Postal Service

and was a civil service employee, his Navy pension, also

deriving from the Federal Government, will never go into

pay status. There was a recalculation done of his Postal

Pension to increase it to $2,857 per month to reflect the

additional receipt of what would have been his Navy

pension. As such, he has realized an increase in his

pension benefits from $1,606 to $2,857, a difference of

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$1,251 of which [Mrs. Green] is entitled to 45% or $563.

(Def.'s Ex. H, March 16, 2010 Order of the Superior Court of New

Jersey, at ¶ 2.) In reaching this decision, the trial judge

permitted oral argument by Mrs. Green and took testimony in Mr.

Green's absence and without notice to him. (Def.'s Ex. A at 8.)

The Plaintiff, Mr. Green, then appealed the March 16, 2010

Order. Because the defendant was deprived of the opportunity to

be heard, the Appellate Division reversed the trial court's March

16, 2010 order and remanded the matter for an evidentiary

hearing. (Def.'s Ex. A, Green v. Green, No. A-3887-09T3 (N.J.

App. Div. March 16, 2011).

Following this remand, on May 31, 2011, the Plaintiff, Mr.

Green, filed the instant action in federal court against the

Defendant, Mrs. Green. [Docket Item 1.] The Plaintiff brings

two causes of action against Mrs. Green. First, the Plaintiff

seeks declaratory and injunctive relief barring the Defendant's

claim in state court and challenging the jurisdiction of the

state court over Defendant's motion for an increased monthly

payment from his pension. Specifically, the Plaintiff alleges in

his complaint that Mrs. Green's state court action is preempted

by ERISA. Second, the Plaintiff brings a malicious prosecution

claim against Mrs. Green based on her filing a motion to enforce

the Final Judgement of Divorce and Qualified Domestic Relations

Order in state court. Plaintiff seeks declaratory and injunctive

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relief on both claims and argues that the federal court has

subject matter jurisdiction pursuant to 28 U.S.C. § 1331 as a

result of ERISA preemption.

In addition to filing the instant action, the Plaintiff also

removed the state court action to federal court on the basis of

ERISA preemption and federal question jurisdiction. See Green v.

Green, No. 11-cv-3236-JBS-JS. This action was then consolidated

with the instant action for discovery and case management

purposes. See Green v. Green, No. 11-cv-3236-JBS-JS [Docket Item

5.]

Mrs. Green, Defendant in the present matter, filed the

pending motion for summary judgment. Mrs. Green argues that 1

Plaintiff's preemption claims fail as a matter law. 

Specifically, the Defendant maintains that her motion to enforce

her rights under the parties' Final Judgment of Divorce and

Qualified Domestic Relations Order is expressly exempt from ERISA

preemption and does not seek to recover proceeds of a benefit

plan governed by ERISA. In addition, Defendant argues that

 Plaintiff initially argues that Defendant did not file her 1

summary judgment motion as a writing in accordance with Fed. R.

Civ. P. 7(b) and 10(b) and consequently, Defendant's motion

should be dismissed. This argument is meritless. First, Fed. R.

Civ. P. 10(b) applies to setting forth claims and defenses in

pleadings, and is inapplicable to motions for summary judgment. 

Further, Defendant did present her motion as a writing and

complied with the requirements of the Federal Rules of Civil

Procedure as well as L. Civ. R. 7.1, 7.2 and 10.1(b). Therefore,

the court rejects this argument as a basis for denying

Defendant's motion for summary judgment. 

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Plaintiff's malicious prosecution claim fails to establish the

necessary elements to sustain a valid claim. 

Plaintiff filed a motion to strike the Defendant's

affirmative defenses and also filed a cross motion for summary

judgment. The Plaintiff argues that the February 1993 order is

not a Qualified Domestic Relations Order for purposes of ERISA

preemption and this order does not provide for payment to Mrs.

Green from his Navy pension. Further, the Plaintiff maintains

that he has sufficiently provided evidence to support his claim

for malicious prosecution.

III. DISCUSSION

A. Standard of Review

Summary judgment is appropriate “if the movant shows that

there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). A dispute is “genuine” if “the evidence is such that a

reasonable jury could return a verdict for the non-moving party.” 

See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A

fact is "material" only if it might affect the outcome of the

suit under the applicable rule of law. Id. Disputes over

irrelevant or unnecessary facts will not preclude a grant of

summary judgment. Id. The Court will view any evidence in favor

of the nonmoving party and extend any reasonable favorable

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inferences to be drawn from that evidence to that party. Hunt v.

Cromartie, 526 U.S. 541, 552 (1999). See also Scott v. Harris,

550 U.S. 372, 378 (2007) (The district court must “view the facts

and draw reasonable inferences in the light most favorable to the

party opposing the summary judgment motion.”).

B. Analysis

1. ERISA Preemption

The Defendant argues that Count I of Plaintiff's complaint

seeking a declaration that Mrs. Green's motion in state court for

increased payments from Plaintiff's pension plan is preempted by

ERISA should be dismissed. The Defendant argues that Mrs. Green

sought to enforce her rights in state court pursuant to the Final

Judgment of Divorce and the subsequent Qualified Domestic

Relations Order ("QDRO") which is permitted under ERISA. 

Specifically, the Defendant maintains that ERISA expressly

exempts QDRO's from preemption and that litigation involving the

terms and enforcement of a QDRO is properly brought in state

court. Therefore, the Defendant contends that summary judgment

is appropriate to dismiss this count.

The Plaintiff maintains that Defendant's enforcement action

in state court is preempted by ERISA. In particular, the

Plaintiff argues that the Defendant, in seeking relief from state

court, did not expressly mention the QDRO in her complaint and

rather, stated that she was seeking enforcement of alimony in the

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amount of 45 percent of Defendant's Navy pension per the June 24,

1991 Final Judgment of Divorce. See Green v. Green, No. 11-cv3236(JBS/JS) [Docket Item 1-1]. Second, the Plaintiff maintains

that there is a genuine issue of material fact as to whether

Plaintiff receives a Navy pension or if his pension is limited to

his service in the United States Postal Service. Therefore, the

Plaintiff maintains that summary judgment should be granted as to

his claim in Count I or in the alternative, there is a genuine

issue of material fact preventing summary judgment for the

Defendant.

The main issue before the court is whether the February 1993

order is a Qualified Domestic Relations Order as defined under

ERISA and whether Mrs. Green's state lawsuit is preempted.

Prior to 1984, ERISA prohibited the alienation or assignment

of pension plan benefits. See 29 U.S.C. § 1056(d)(1). In 1984,

Congress amended ERISA by enacting the Retirement Equity Act

("REA") which allowed a participant to alienate or assign pension

benefits under a domestic relations order so long as the order is

"determined to be a qualified domestic relations order." See 29

U.S.C. § 1056(d)(3)(A). 

"In creating the QDRO mechanism Congress was careful to

provide that the alternate payee, the 'spouse, former spouse,

child or other dependent of a participant,' is to be considered a

plan beneficiary." Boggs v. Boggs, 520 U.S. 833, 847 (1997). 

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"QDRO's, unlike domestic relations orders in general, are exempt

from both the pension plan anti-alienation provision, §

1056(d)(3)(A), and ERISA's general preemption clause, §

1144(b)(7)." Id. at 846-47. "These provisions are essential to

. . . give enhanced protection to the spouse and dependent

children in the event of divorce or separation, and in the event

of death [of] the surviving spouse." Id.

Whether a domestic relations order qualifies as a QDRO under

ERISA is a question of statutory construction. Metropolitan Life

Ins. Co. v. Price, 501 F.3d 271, 282 (3d Cir. 2007). Under

ERISA, a QDRO is a type of domestic relations order "which

creates or recognizes the existence of an alternate payee's right

to, or assigns to an alternate payee the right to, receive all or

a portion of the benefits payable with respect to a participant

under a plan." 29 U.S.C. § 1056(d)(3)(B)(i)(I). A "domestic

relations order" is defined as "any judgment, decree, or order

(including approval of a property settlement agreement) which 

relates to the provision of child support, alimony payments or

marital property rights to a spouse, former spouse, child, or

other dependent of a participant, and is made pursuant to a State

domestic relations law (including community property law)." 29

U.S.C. § 1056(d)(3)(B)(ii)(I)-(II). 

A domestic relations order must specify the following four

items to be considered a QDRO under ERISA:

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(i) the name and the last known mailing address (if any) of

the participant and the name and mailing address of each

alternate payee covered by the order,

(ii) the amount or percentage of the participant's benefits

to be paid by the plan to each such alternate payee, or the

manner in which such amount or percentage is to be

determined.

(iii) the number of payments or period to which such order

applies, and

 (iv) each plan to which such order applies.

29 U.S.C. § 1056(d)(3)(C)(i)-(iv). In addition, a QDRO must not

require a plan to provide any type or form of benefit, or any

option, not otherwise provided under the plan, must not require

the plan to provide increased benefits, and must not interfere

with required payments under a previously approved QDRO. See 29

U.S.C. § 1056(d)(3)(D).

In this case, the February 1993 order satisfies all the

requirements of a QDRO under ERISA. It provides the name and

last known mailing address of the Plaintiff, as the participant

and the Defendant, as the alternate payee. It clearly states

that Mrs. Green, as the alternate payee, is to receive 47.5

percent of Plaintiff's monthly pension payments. The order

specifies that these payments are to be made retroactively from

June 24, 1991 until either the Plaintiff or Defendant deceases. 

Finally, the order is clear that it "applies to any and all

monies receivable by the participant from the United States

Postal Service/Civil Service Retirement System. It shall also

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include and fully apply to and bind any successor plan or

additional monies subsequently received by the participant." 

(Pl.'s Ex. E at ¶5C.) 

Furthermore, the February 1993 order does not provide any

type or form of benefit, or any option, not otherwise provided

under the plan, does not require the plan to provide increased

benefits, and does not interfere with required payments under a

previously approved QDRO, as there are no previous QDRO's at

issue in this case. 

Therefore, the court is satisfied that the February 1993

order is a QDRO under ERISA and therefore, any actions to enforce

this order are expressly exempt from ERISA's broad preemption

provision. See 29 U.S.C. § 1144(b)(7)(stating that ERISA's

preemption provision at 29 U.S.C. § 1144(a) does not apply to

qualified domestic relations orders).

To the extent that Plaintiff argues that 29 U.S.C. § 1132(a)

applies to completely preempt Defendant's state law motion, this

argument is unpersuasive. Under Section 1132(a), a participant

or beneficiary may bring a civil enforcement action to recover

benefits due to him under the terms of his plan, to enforce his

rights under the terms of the plan, or to clarify his rights to

future benefits under the terms of the plan. 

In this case, Mrs. Green is not seeking to recover benefits

under the terms of the plan, enforce her rights under the terms

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of the plan or to clarify her rights to future benefits under the

terms of the plan pursuant to Section 1132(a). Rather, Mrs.

Green is seeking to force the Plaintiff to comply with the terms

of their Final Judgment of Divorce and February 1993 QDRO because

Plaintiff was allegedly concealing his increased pension from

Mrs. Green and failed to pay her the percentage agreed to under

the terms of their divorce judgment and QDRO. The compensation

Mrs. Green seeks is compliance by the Plaintiff with a state

domestic relations order, not benefits paid to her as a result of

an ERISA plan. 

The Supreme Court has clearly held that the domestic

relations of a husband wife are governed by state, not federal

law. Boggs v. Boggs, 520 U.S. 833, 847-48 (1997). "Support

obligations, in particular, are 'deeply rooted moral

responsibilities' that Congress is unlikely to have intended to

intrude upon." Id. at 848. Consequently, the Supreme Court

explained that "Congress ensured that state domestic relations

orders, as long as they meet certain statutory requirements, are

not preempted" by ERISA. Id. 

ERISA does not create substantive rights for a divorcing

party; rather, ERISA "accommodates, by the provisions governing

QDROs, rights created by state matrimonial law." Edmonds v.

Edmonds, 710 N.Y.S. 2d 765, 768 (Sup. Ct. 2000). "Importantly,

ERISA does not create or afford a former spouse any substantive

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rights, and a divorcing spouse's right to a property interest in

pension benefits arises only by operation of state marital

property law." Critchell v. Critchell, 746 A.2d 282, 287 (D.C.

2000). The Third Circuit explained: 

Congress was concerned that the combination of ERISA's

sweeping preemption of state law, 29 U.S.C. § 1144(a),

and the provisions of REA would result in needless

federal interference with state domestic relations laws. 

Congress avoided this potential comity problem by

exempting qualified domestic relations orders from ERISA

preemption. See 29 U.S.C. § 1144(b)(7). In other words,

to the extent REA is silent concerning qualified domestic

relations orders, state courts will issue them in

accordance with state law.

Samaroo v. Samaroo, 743 F. Supp. 309, 312-13 (3d Cir. 1990). 

In this case, it is clear Mrs. Green filed her motion in

state court seeking to enforce her rights under the Final

Judgment of Divorce and QDRO. These claims do not arise under

ERISA and are not claims seeking a benefit due to her under the

terms of an ERISA plan. Rather, these are claims arising under

the state domestic relations law governing the Final Judgment of

Divorce and QDRO. Specifically, Mrs. Green seeks to recover

funds which are due to her as a result of the division of marital

property and assets set forth in the Final Judgment of Divorce

and QDRO. Mrs. Green's claim to enforce these rights arises

under New Jersey state domestic relations law, not ERISA.

As further evidence that Mrs. Green sought to enforce her

rights under the state domestic relations law underlying her

divorce order and QDRO, the court notes that Mrs. Green did not

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join the plan as a Defendant in the underlying state enforcement

proceeding and did not sue in her capacity as an alternate payee

under the plan but rather brought suit directly against the

Plaintiff in her capacity as Plaintiff's ex-wife. 

Accordingly, Mrs. Green's motion was properly brought in New

Jersey Superior Court, Family Division and Section 1132(a) does

not apply to completely preempt her claim. 

The remaining issue before the court is Plaintiff's argument

that Mrs. Green's motion filed in state court under her divorce

docket was in essence a motion to enforce the Final Judgment of

Divorce and did not involve the QDRO. The Plaintiff maintains

that if the underlying state court action did not involve

enforcement of the QDRO, then the exception to ERISA preemption

does not apply. For the reasons explained below, the court finds

this argument unpersuasive and concludes that Mrs. Green's motion

in state court was a motion to enforce the terms of the QDRO and

therefore exempt from ERISA's preemption provisions.

First, the court must note that Mrs. Green filed the

underlying motion in state court pro se. It is well established

that when construing a pleading filed by a pro se litigant, the

court must be mindful to construe it liberally in favor of the

plaintiff. Erickson v. Pardus, 551 U.S. 89 (2007). While this

principle is typically applied in evaluating the sufficiency of a

complaint filed in federal court by a pro se litigant, the court

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finds it applicable in this action in determining whether Mrs.

Green's state court motion involved the enforcement of the

February 1993 QDRO.

In her motion papers, Mrs. Green specifies that she was

seeking "enforcement of alimony in the amount of 45% of

Defendant's Navy pension per order 6-24-1991." Defendant further

clarifies that she had "never received my 45% entitlement of

Defendant's Navy pension" and that Defendant's "total postal and

naval pension is $2857.00." See Green v. Green, No. 11-cv3236(JBS/JS) [Docket Item 1-1]. 

The Final Judgment of Divorce entered on June 24, 1991,

clearly contemplates the parties' division of Plaintiff's pension

benefits and expressly states that this division is to be

accomplished through the subsequent adoption of a Qualified

Domestic Relations Order. (Def.'s Ex. E, Final Judgment of

Divorce, at ¶¶4-5.) Further, the February 1993 QDRO expressly

states that it was entered pursuant to the Final Judgment of

Divorce entered on the 24th day of June, 1991. (Pl.'s Ex. E ¶ 7.) 

Accordingly, while Mrs. Green does not specify in her

complaint that she is seeking to enforce the February 1993 QDRO,

she clearly states that she is seeking to enforce her rights to a

percentage of Plaintiff's pension and these rights are

articulated in the Final Judgment of Divorce which authorized the

entry of the QDRO at issue. Therefore, the court is satisfied

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that Mrs. Green filed the instant state court action seeking to

enforce her rights under the Final Judgment of Divorce and the

QDRO and this action, as discussed above, is not preempted by

ERISA. 

Finally, the Plaintiff argues summary judgment should be

denied because there is an issue of fact about whether a Navy

pension exists and whether the QDRO entitles Mrs. Green to a

portion of Plaintiff's naval pension. This fact is not material

to deciding Plaintiff's claim for declaratory judgment as to

whether Mrs. Green was entitled to file the underlying state

court action, which this court has determined is not preempted by

ERISA. Rather, this is a fact integral to the interpretation of

the QDRO and Mrs. Green's rights thereunder. From the record, it

appears that Plaintiff's postal pension increased from $1,606 to

$2,857 a month as a result of Plaintiff's service in the Navy. 

Since the Plaintiff retired from the United States Postal Office,

his pension derives from the federal government, and therefore

any pension he could have received from his Navy service is in

non-pay status. Consequently, as the Plaintiff could not receive

a separate Navy pension, it appears from the record that his

postal pension was increased to reflect his additional time spent

serving the federal government. Whether Mrs. Green is entitled

to a percentage of this increase under the February 1993 QDRO is

a matter for the state court in interpreting the scope of the

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parties' divorce agreement and support obligation, as explained

above, and not a subject of this motion for declaratory relief.

Therefore, summary judgment is appropriate to dismiss Count

I of Plaintiff's complaint which seeks declaratory judgment that

Defendant's claim for increased monthly payments from Plaintiff's

pension is preempted. The February 1993 order is a Qualified

Domestic Relations Order as defined by ERISA and exempted from

ERISA preemption pursuant to 29 U.S.C. 1144(a) and (b). 

Accordingly, the Defendant was entitled to file the underlying

state court motion and Plaintiff's claim for declaratory relief

will be dismissed.

2. Malicious Prosecution Under Color of Law

In Count II of his complaint, Plaintiff alleges a claim of

"malicious prosecution under color of law by Defendant" as a

result of the Defendant's filing her initial motion to enforce

payment pursuant to the Final Judgment of Divorce in state court. 

As Plaintiff's complaint is ambiguous as to whether he is

bringing his malicious prosecution claim under 42 U.S.C. § 1983

or state tort law, the court will briefly address both potential

claims. For the reasons stated below, summary judgment is

appropriate to dismiss Plaintiff's malicious prosecution claim.

To the extent Plaintiff is seeking to sue Mrs. Green under

42 U.S.C. § 1983 for malicious prosecution, this claim must be

dismissed as Mrs. Green was not acting under the color of state

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law in filing the underlying state court enforcement motion. See

Phillips v. County of Allegheny, 515 F.3d 224, 235 (3d Cir.

2008)("Under Section 1983, a plaintiff must plead a deprivation

of a constitutional right and that the constitutional deprivation

was caused by a person acting under the color of state law."). 

In this case, it is clear Mrs. Green was acting as a private

citizen, filing the underlying motion to enforce her rights under

the Final Judgment of Divorce and subsequent QDRO, and was not

acting under the color of state law. Therefore, any claim under

Section 1983 must fail.

Further, to the extent that Plaintiff is bringing a tort

claim for malicious use of process, this too must be dismissed. 

In order to establish a claim for malicious use of process, the

civil equivalent of a malicious prosecution claim, a plaintiff

must satisfy five elements: (1) defendant instituted the civil

action against the plaintiff; (2) defendant was motivated by

malice; (3) defendant lacked probable cause; (4) the civil action

terminated favorably to the plaintiff; and (5) plaintiff suffered

a special grievance. See LoBiondo v. Schwartz, 199 N.J. 62, 90

(N.J. 2009). 

The special grievance requirement "is designed to take the

place of the injurious effects, including arrest, restraint, or

the attendant humiliation of being held on bail, finger-printed,

and photographed, that ordinarily flow from a wrongfully

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instituted criminal charge." Id. New Jersey courts have held

"the minimal impact of the commencement of civil litigation is

insufficient on its own to demonstrate an injury." Id. at 90-91.

"The tort of malicious use of process is disfavored out of

fear that its use could chill free access to the courts." 

Turner v. Wong, 363 N.J. Super. 186 (App. Div. 2003). It may

only be asserted to "abide the favorable resolution of the

litigation to which it responds." LoBiondo, 199 N.J. at 72. 

In this case, the Plaintiff has failed to set forth

sufficient evidence to establish a malicious use of process

claim. Most importantly, the Plaintiff has failed to establish

that the underlying civil action terminated in his favor. 

Specifically, the state court action was remanded by the

Appellate Division for further proceedings and subsequently

removed by the Plaintiff to federal court. This action remains

pending and active on the court's docket. Therefore, since the

Plaintiff has failed to establish this crucial element of his

claim, summary judgment is appropriate. 

Accordingly, Count II of Plaintiff's complaint will be

dismissed.

3. Plaintiff's Motion to Strike

As the court has granted Defendant's motion for summary

judgment, Plaintiff's Motion to Strike Defendant's Affirmative

Defenses is now moot. Therefore, the court will dismiss this

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motion. 

4. Viability of Related Action

The court is aware that the underlying state court action

which is the subject of the instant motion was removed to federal

court and pending on the court's docket. See Green v. Green, No.

11-cv-3236(JBS/JS). As a result of today's opinion, the court

must address whether it has subject matter jurisdiction over this

related action. Therefore, the court will order the parties to

show cause why this related action should not be remanded to

state court. 

IV. CONCLUSION

For the reasons discussed above, the Defendant's motion for

summary judgment will be granted and the Plaintiff's cross motion

for summary judgment will be denied. The Defendant's underlying

motion to enforce her right to payment pursuant to her Final

Judgment of Divorce and Qualified Domestic Relations Order is not

preempted by ERISA and therefore, Plaintiff's claim for

declaratory relief will be dismissed. In addition, the Plaintiff

has failed to establish a cause of action for malicious

prosecution as he has not established that the underlying civil

action terminated in his favor. Indeed, the action was removed

to federal court and remains pending on this court's docket. 

Since the court has granted the Defendant's motion for

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summary judgment, there is no need to reach Plaintiff's motion to

strike Defendant's affirmative defenses. Therefore, this motion

will be dismissed as moot.

Finally, as a result of today's opinion, the court must

address whether it has subject matter jurisdiction over the

parties' related action, Green v. Green, No. 11-cv-3236(JBS/JS).2

The court will issue an order to show cause in the related action

as to whether the court has subject matter jurisdiction over this

dispute. The accompanying Order will be entered.

 September 24, 2012 s/ Jerome B. Simandle 

Date JEROME B. SIMANDLE

Chief U.S. District Judge

 The court may raise the issue of subject matter 2

jurisdiction on its own pursuant to Rule 12(h)(3), Fed. R. Civ.

P., which provides: "If the court determines at any time that it

lacks subject-matter jurisdiction, the court must dismiss the

action." Mr. Green removed the related action from the Superior

Court of New Jersey to this court on the basis of federal

question jurisdiction, 28 U.S.C. § 1331, arguing that Mrs.

Green's state court action was preempted by ERISA. In the

present suit, this court has determined that Mrs. Green's effort

in state court is not preempted by ERISA, because it arises from

enforcement of a valid QDRO under state law, as explained above. 

This court would have no basis under federal law for maintaining

federal question jurisdiction in No. 11-cv-3236. Mr. Green, as

the party who removed that case, has the burden of proving that

this federal court has jurisdiction over the subject matter. Mr.

Green will have the opportunity to make this jurisdictional

showing in response to the Order to Show Cause being entered in

that companion case today.

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