UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

GARY MOSHER,
Plaintiff,
v.
THE STATE OF NEW JERSEY; 
JUDGE DEANNE M. WILSON; 
JUDGE WILLIAM HUNT DUMONT; 
JUDGE DENNIS CAVANAUGH; 
and PATRIOT MEDIA,
Defendants.

Hon. Stanley R. Chesler Civil Action No. 06-2526

NOTICE OF MOTION

PLEASE TAKE NOTICE that on Monday, September 11, 2006, at 10:00 a.m., or as soon thereafter as counsel may be heard, defendant Honorable Dennis M. Cavanaugh, United States District Judge, by and through his attorney, Christopher J. Christie, United States Attorney for the District of New Jersey (James B. Clark, III, Assistant U.S. Attorney, appearing), will move for summary judgment on the claims set forth against him in the Complaint in this matter pursuant to Federal Rule of Civil Procedure 56 because he is absolutely immune from suit.

PLEASE TAKE FURTHER NOTICE that the defendant will request that discovery in this matter be stayed until the foregoing motion has been decided.

In support of this motion, the defendant will rely upon the memorandum and upon the Declaration of Honorable Dennis M. Cavanaugh, both of which are submitted herewith.

Pursuant to Federal Rule of Civil Procedure 78 oral argument is not required and disposition of this motion is requested on the papers in accordance with the proposed Order submitted herewith.

CHRISTOPHER J. CHRISTIE United States Attorney
s/James B. Clark III
By:  JAMES B. CLARK, III
Assistant U.S. Attorney
Dated: August 11, 2006

CHRISTOPHER J. CHRISTIE United States Attorney By: JAMES B. CLARK, III Assistant U.S. Attorney 970 Broad Street, Room 700 Newark, New Jersey 07102 (973) 645-6548

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

GARY MOSHER,
Plaintiff,
Hon. Stanley R. Chesler Civil Action No. 06-2526
v.
THE STATE OF NEW JERSEY;
 JUDGE DEANNE M. WILSON; 
JUDGE WILLIAM HUNT DUMONT; 
JUDGE DENNIS CAVANAUGH; 
and PATRIOT MEDIA,
Defendants.

MEMORANDUM IN SUPPORT OF MOTION OF DEFENDANT HONORABLE DENNIS M. CAVANAUGH FOR DISMISSAL OF COMPLAINT AGAINST HIM

CHRISTOPHER J. CHRISTIE United States Attorney 970 Broad Street, Room 700 Newark, New Jersey 07102 (973) 645-2700

On the Memorandum: JAMES B. CLARK, III Assistant U.S. Attorney


TABLE OF CONTENTS
TABLE OF AUTHORITIES ............................
PRELIMINARY STATEMENT ...........................,
LOCAL RULE 56.1 STATEMENT OF UNDISPUTED
MATERIAL FACTS..............................
ARGUMENT .........................................
POINT I - PLAINTIFF'S COMPLAINT AGAINST DEFENDANT HONORABLE DENNIS M. CAVANAUGH
SHOULD BE DISMISSED BECAUSE HE IS JUDICIALLY IMMUNE FROM SUIT ......................
POINT II - THE COURT SHOULD STAY ALL
DISCOVERY UNTIL IT HAS ISSUED A RULING ON THIS MOTION ........
CONCLUSION .......................................


TABLE OF AUTHORITIES

Anderson v. Liberty Lobby, Inc.. 477 U.S. 242
(1986) .........................................          6
Arnett v. Aspin, 846 F. Supp. 1234 (E.D. Pa. 1996) ..          5, 6
Ashelman v. Pooe, 793 F.2d 1072 (9th Cir. 1986) .....         7
Billinqsley v. Kvser, 691 F.2d 388 (8th Cir. 1982) ..         7
Bivens v. Six Unknown Named Agents, 403 U.S. 388
(1971) .........................................          i, 9n
Bolin v. Story, 225 F.3d 1234 (11th Cir. 2000) .......          9, 10
Booth v. Churner, C.O.. 206 F.3d 289 (3d Cir. 2000) .         In
Celotex Corp. v. Catrett. 477 U.S. 317 (1986) .......         5
Fiaueroa v. Blackburn, 208 F.3d 435 (3d Cir. 2000) ..          6, 7
Forrester v. 'white, 484 U.S. 219 (1988) .............          6, 7, 10
Matsushita Electric Industrial Co. v. Zenith Radio
Corp. , 475 U.S. 574 (1986) .....................          6
Mireles v. Waco, 502 U.S. 9 (1991) ..................         10
Mullis v.  United States Bankruptcy Court, District
of Nevada, 828 F.2d 1385 (9th Cir. 1987) .......         8, 9
Paaano v. Hadlev, 535 F. Supp. 92 (D. Del. 1982).....          6
Pierson v. Ray, 386 U.S. 547 (1967) .................         6, 7
Pulliam v. Allen, 466 U.S. 522 (1984) ...............         8, 9
Robinson v. McCorkle, 462 F.2d 111 (3d Cir. 1972) ...          6
Schrob v. Catterson, 948 F.2d 1402 (3d Cir. 1991) ...          12
Scruggs v. Moellering, 870 F.2d 376 (7th Cir. 1989) .          9
Stump v. Sparkman, 435 U.S. 349 (1978) ..............          6
Turack v. Guido, 464 F.2d 535 (3d Cir. 1972) ........          6

PRELIMINARY STATEMENT

Plaintiff Gary Mosher sues the State of New Jersey, New Jersey Superior Court Judge Deanne M. Wilson, New Jersey Superior Court Judge William Hunt Dumont, United States District Court Judge Dennis M. Cavanaugh, and Patriot Media, vaguely alleging that all of the defendants have acted in violation of his constitutional right to due process. With respect to defendant Honorable Dennis M. Cavanaugh, plaintiff is a disgruntled former litigants who is suing regarding unfavorable result he received in the earlier case of Mosher v. State of New Jersey, Civ. Action No. 06-703 (DMC)(D.N.J.). There, plaintiff Gary Mosher sued the State of New Jersey and New Jersey Superior Court Judge William Hunt Dumont, again vaguely alleging that those defendants had acted in violation of his constitutional right to due process. Current defendant Honorable Dennis M. Cavanaugh presided over that earlier matter and ultimately dismissed the law suit for failure to state a viable claim for relief.

In his complaint, plaintiff wholly fails to specify the legal theories upon which he premises his suit. Nevertheless, for purposes of this motion, defendant Honorable Dennis M. Cavanaugh will assume that the most likely theory under which plaintiff is proceeding against them is a constitutional tort theory pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).1

1 In making this assumption for purposes of this motion, the defendant is aware that the pleadings of pro se litigants are normally accorded liberal construction. See Booth v. Churner,

For the reasons set forth in this memorandum, the complaint against defendant Honorable Dennis M. Cavanaugh should be dismissed and summary judgment should be entered in his favor because he is absolutely judicially immune from suit in this case. Additionally, discovery should be stayed pending the Court's decision on this motion. C.O., 206 F.3d 289, 291 n.10 (3d Cir. 2000).

LOCAL RULE 56.1 STATEMENT OF UNDISPUTED MATERIAL FACTS

Defendant Honorable Dennis M. Cavanaugh, as his statement of undisputed material facts pursuant to Local Rule 56.1, states:

1. On February 15, 2006, Gary Mosher filed a lawsuit against the State of New Jersey and New Jersey Superior Court Judge William Hunt Dumont in which he vaguely alleged violations of his constitutional right to due process. That lawsuit was filed in the United States District Court for the District of New Jersey, Civil Action Number 06-703. See Declaration of Honorable Dennis M. Cavanaugh, Exhibit A.

2. On March 6, 2006, defendant Honorable Dennis M. Cavanaugh issued an Order in Civil Action 06-703 (D.N.J.) directing that within thirty days plaintiff Gary Mosher submit a more specific statement of the relief he was requesting in that action. See Declaration of Honorable Dennis M. Cavanaugh, Exhibit C.

3. On March 20, 2006, plaintiff Gary Mosher filed a letter in Civil Action 06-703 (D.N.J.) in response to Judge Cavanaugh's March 6th Order. See. Declaration of Honorable Dennis M. Cavanaugh, Exhibit D.

4. On March 24, 2006, defendant Honorable Dennis M. Cavanaugh issued an Order dismissing Civil Action No. 06-703 (D.N.J.). See Declaration of Honorable Dennis M. Cavanaugh, Exhibit E.

5. Paragraphs two through four, supra, outline the sum total of the actions defendant Honorable Dennis M. Cavanaugh took with respect to Civil Action No. 06-703 (D.N.J.), and all of those actions were in his capacity as the District Judge presiding over that matter and were judicial in nature. See Declaration of Honorable Dennis M. Cavanaugh, at 2.

6. Aside from serving as the District Judge in Civil Action Number 06-703 (D.N.J.), defendant Honorable Dennis M. Cavanaugh has had no other contact whatsoever with plaintiff Gary Mosher, either professionally or personally. See Declaration of Honorable Dennis M. Cavanaugh, at 2.

7. In the present matter, plaintiff Gary Mosher, who (as noted) was plaintiff in the earlier Civil Action Number 06-703 (D.N.J.), is now suing United States District Judge Dennis M. Cavanaugh for the actions he took in connection with Civil Action Number 06-703 (D.N.J.). See, Complaint.

8. This is the motion of defendant Honorable Dennis M. Cavanaugh for summary judgment pursuant to Federal Rule of Civil Procedure 56 on all claims set forth against him in the current action, Civil Action Number 06-2526 (SRC).

ARGUMENT

POINT I - PLAINTIFF'S COMPLAINT AGAINST DEFENDANT HONORABLE DENNIS M. CAVANAUGH SHOULD BE DISMISSED BECAUSE HE IS JUDICIALLY IMMUNE FROM SUIt

Defendant Honorable Dennis M. Cavanaugh is entitled to dismissal of the plaintiff's complaint against him because he is judicially immune from suit. It is well established that United States District Judges who commit judicial acts are immune from suit stemming from those acts unless the acts were taken in complete absence of all subject matter jurisdiction. Here, as the Declarations of record bear out, the actions taken by defendant Honorable Dennis M. Cavanaugh in Civil Action Number 06-703 (D.N.J.) were clearly judicial in nature, and there is no contention - nor could there be - that these actions were taken in the complete absence of all subject matter jurisdiction. Consequently, an entry of summary judgment in favor of defendant Honorable Dennis M. Cavanaugh is appropriate.

Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Federal Rule of Civil Procedure 56 (c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Arnett v. Aspin, 846 F. Supp. 1234 (E.D. Pa. 1996).

A genuine issue of material fact is one that could change the outcome of the litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Thus, the non-movant cannot manufacture genuine issues of material fact by offering merely "some metaphysical doubt as to the material facts," Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), or "conclusory allegations of the complaint . .. with conclusory allegations of an affidavit." Arnett, 846 F. Supp. at 1237.

The doctrine that federal judges are absolutely immune from damages suits for acts committed within the scope of their judicial duties is well established. See Forrester v. White, 484 U.S. 219 (1988) (reaffirming doctrine of absolute judicial immunity but declining to extend absolute immunity to judges' administrative functions); Pierson v. Ray, 386 U.S. 547 (1967) (applying doctrine to action brought pursuant to 42 U.S.C. § 1983); see also Stump v. Sparkman, 435 U.S. 349 (1978); Fiaueroa v. Blackburn, 208 F.3d 435, 442 (3d Cir. 2000)(dismissing suit against municipal court judge alleging improper judicial actions); Turack v. Guido. 464 F.2d 535 (3d Cir. 1972)(affirming dismissal of pro se civil rights damage action arising from alleged improper actions relating to domestic relations suit); Robinson v. McCorkle, 462 F.2d 111 (3d Cir. 1972)(finding judicial immunity as to claim of improper, involuntary commitment under repealed statute); Pagano v. Hadlev, 535 F. Supp. 92 (D. Del. 1982).

In Pierson v. Ray, 386 U.S. 547, the United States Supreme Court engaged in a useful explanation of the traditional concept of judicial immunity. Specifically, the Court stated:

Few doctrines were more solidly established at common law than the immunity of judges from liability for damages for acts committed within their judicial jurisdiction, as this Court recognized when it adopted the doctrine, in Bradley v. Fisher, 13 Wall. 335 20 L.Ed. 646 (1872). This immunity applies even when the judge is accused of acting maliciously and corruptly, and it "is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences." (Scott v. Stansfield, L.R. 3 Ex. 220, 223 (1868), quoted in Bradley v. Fisher, supra, 349, note, at 350.) It is a judge's duty to decide all cases within his jurisdiction that are brought before him, including controversial cases that arouse the most intense feelings in the litigants. His errors may be corrected on appeals, but he should not have to fear that unsatisfied litigants may hound him with litigation charging malice or corruption. Imposing such a burden on judges would contribute not to principled and fearless decisionmaking but to intimidation.

The doctrine of absolute judicial immunity has also generally been interpreted as barring private suits for equitable relief against federal judges for acts committed in their capacity as judicial officers. While the United States Supreme Court, in Pulliam v. Allen, 466 U.S. 522, 541-42 (1984),2 noted that judicial immunity is not necessarily a bar to prospective relief in federal courts against state judicial officials, most lower courts interpreting Pulliam have concluded that the reality of equitable relief against a federal judge appears entirely hypothetical and perhaps even illusory.

In Mullis v. United States Bankruptcy Court, District of Nevada. 828 F.2d 1385 (9th Cir. 1987), the Ninth Circuit Court of Appeals addressed the issue of preliminary injunctive relief against federal judicial officers. There, the Court of Appeals was faced with a bankruptcy petition that led to a civil action against several bankruptcy judges and court personnel, seeking damages and injunctive relief. In affirming the District Court's dismissal of the action on immunity grounds, the Ninth Circuit panel recognized that in federal question cases where injunctive relief is sought

2 Pulliam was a 42 U.S.C. § 1983 action whereby plaintiff sought to enjoin a state court magistrate whose practice it was to incarcerate misdemeanor defendants who could not make bail even though conviction for the charged offense could not result in imprisonment. In what has since been interpreted as a narrow holding, the Pulliam Court determined that this practice of the state court magistrate could be enjoined by a federal court if there is no other adequate remedy at law.

against a federal judicial officer, one District Court has no power to enjoin another. Such relief must come, if at all, from a higher court in the form of a writ of mandamus. Id. at 1391-94.

In addition to the Mullis decision and its rationale, other significant decisions post-dating Pulliam have questioned the general availability of equitable relief against federal judicial officials, since a litigant seeking such relief will normally have adequate alternative legal remedies. For example, in Scruggs v. Moellerina, 870 F.2d 376 (7th Cir. 1989), the Seventh Circuit Court of Appeals upheld a District Court's denial of prospective relief against a judicial official on the ground that the plaintiff had an adequate remedy at law and thus could not establish the irreparable harm necessary to justify injunctive relief. See id. at 378.

Still more recently, in Bolin v. Story, 225 F.3d 1234 (11th Cir. 2000), the Eleventh Circuit Court of Appeals flatly rejected the notion that Pulliam countenances any grant of equitable relief against federal judges in Bivens actions. In so deciding, the Court found support not only in existing case law, but also in the Federal Courts Improvement Act of 1996, Pub. L. No. 104-317, 110 Stat. 3847 (1996), which amended 42 U.S.C. § 19833 to provide that "injunctive relief shall not be granted" in an action brought against "a judicial officer for an act or omission taken in such

3This statute is a counterpart to Bivens in that it permits damages actions against state officials alleged to have violated an individual's constitutional rights.

officer's judicial capacity ... unless a declaratory decree was violated or declaratory relief was unavailable." See Bolin, 225 F.3d at 1242.

Here, defendant Honorable Dennis M. Cavanaugh is clearly absolutely judicially immune from the damages claims proffered against him by the plaintiffs. Certainly, the acts for which he is being sued - issuing decisions and orders as the neutral in an earlier litigation involving the plaintiff - are the very embodiment of acts which are judicial in nature. Compare Mireles v. Waco, 502 U.S. 9, 12 (1991)(judge ordering court officers to round up parties who failed to appear in Court is judicial act) with Forrester, 484 U.S. at 229 (judge firing probation officer not a judicial act) . Moreover, the acts for which defendant Honorable Dennis M. Cavanaugh is now being sued were not taken in the complete absence of all subject matter jurisdiction. Rather, these acts were taken in connection with a federal case raising issues of federal law, filed in federal court, and involving parties in interest who offered no valid jurisdictional objection to the Court's presiding over the matter.

Likewise, defendant Honorable Dennis M. Cavanaugh is absolutely judicially immune from any action by plaintiff for equitable relief based upon the actions he took in Civil Action Number 06-703 (D.N.J.). As noted supra, many federal courts which have considered such lawsuits against federal judges have found them to be subject to the bar of absolute judicial immunity to the same extent as damages actions against federal judges. Even those courts which have not found the bar on equitable relief against federal judges to be quite so absolute have determined that it will be fully effective where an adequate alternative remedy is available to the plaintiff. Here, the plaintiff had the right to direct appeal to the Third Circuit Court of Appeals from that decision or action which he considered improper. Given this significant remedy, there is surely no basis whatsoever for this Court to consider a grant of equitable relief against Judge Cavanaugh.

In sum, defendant Honorable Dennis M. Cavanaugh is entitled to absolute judicial immunity from the plaintiff's claims for damages and equitable relief and this Court should grant his motion for summary judgment.

POINT II - THE COURT SHOULD STAY ALL DISCOVERY UNTIL IT HAS ISSUED A RULING ON THIS MOTION

Defendant Honorable Dennis M. Cavanaugh respectfully requests that the Court stay all discovery in this case until the Court has decided the substantive motions presented herein. Because of the high probability of success on the merits of his substantive motions, Judge Cavanaugh urges that the Court exercise its inherent equitable powers and stay discovery to avoid any unnecessary expenditure of resources. Additionally, because Judge Cavanaugh's summary judgment motion involves a claim that he is entitled to absolute immunity, it is submitted that he is entitled to a stay of discovery pending the Court's decision on that motion. Cf. Schrob v. Catterson, 948 F.2d 1402, 1421 n.18 (3d Cir. 1991) (good faith assertion of qualified immunity justifies staying discovery until issue resolved). Thus, defendant Honorable Dennis M. Cavanaugh submits that the requested stay of discovery is appropriate. CONCLUSION

For all of the foregoing reasons, it is respectfully submitted that defendant Dennis M. Cavanaugh is entitled to a dismissal of all claims against him in the complaint. It is also respectfully requested that discovery be stayed pending the Court's decision on this application. Respectfully submitted,

CHRISTOPHER J. CHRISTIE United States Attorney
s/James B. Clark III
By:  JAMES B. CLARK, III
Assistant U.S. Attorney
Dated: August 11, 2006