Tonge v. State of New Jersey, 091118 FED3, 17-2220

• Docket Nº: 17-2220
• Opinion Judge: HARDIMAN, CIRCUIT JUDGE.
• Party Name: D. RICHARD TONGE; JUST NEW HOMES, INC., Appellants v. STATE OF NEW JERSEY; NEW JERSEY REAL ESTATE COMMISSION
• Judge Panel: Before: HARDIMAN, KRAUSE, and BIBAS, Circuit Judges.
• Case Date: September 11, 2018
• Court: United States Courts of Appeals, Court of Appeals for the Third Circuit

D. RICHARD TONGE; JUST NEW HOMES, INC., Appellants

v.

STATE OF NEW JERSEY; NEW JERSEY REAL ESTATE COMMISSION

No. 17-2220

United States Court of Appeals, Third Circuit

September 11, 2018

NOT PRECEDENTIAL

Submitted Under Third Circuit L.A.R. 34.1(a) September 7, 2018

On Appeal from the United States District Court for the District of New Jersey (D.N.J. No. 3-16-cv-01319) District Judge: Honorable Peter G. Sheridan

Before: HARDIMAN, KRAUSE, and BIBAS, Circuit Judges.

OPINION ^[*]

HARDIMAN, CIRCUIT JUDGE.

D. Richard Tonge and Just New Homes, Inc. (collectively, Tonge) appeal the District Court's order dismissing their complaint for lack of subject matter jurisdiction. Because Tonge's claims are barred by the Eleventh Amendment, we will affirm.

I

Tonge was licensed as a real estate broker in New Jersey. He attracted customers by offering incentives that apparently ran afoul of New Jersey law. The New Jersey Real Estate Commission initiated disciplinary action in 2005, and five years later entered a final order revoking Tonge's real estate license and imposing a fine of $123, 500. The Appellate Division of the New Jersey Superior Court affirmed, and the Supreme Court of New Jersey declined to hear Tonge's case.

In 2016, Tonge filed this suit against the Commission and the State of New Jersey in the United States District Court for the District of New Jersey. He asserted several causes of action, each of which rested on one basic claim. Tonge had argued to the Commission that New Jersey regulators had already approved his practices as part of an earlier settlement agreement. But the Commission found no such agreement or approval ever existed. The Appellate Division deemed this finding supported by the "undisputed record," Supp. App. 44, but Tonge's federal complaint alleged the Commission had procured that result by fraudulently "misrepresenting, denying, omitting or concealing the existence of a settlement agreement . . . confirm[ing] that [Tonge's] . . . business operated lawfully." App. 744 (Am. Compl. ¶ 1).

The District Court dismissed Tonge's initial complaint for lack of subject matter jurisdiction but granted leave to amend. Tonge did so, but the Court found his amended complaint did not differ materially from his first effort, and again dismissed his case, this time with prejudice. Ruling from the bench, the District Court determined it lacked jurisdiction under both the Rooker-Feldman doctrine and the Eleventh Amendment to the United States Constitution. This appeal followed.

II ¹

We agree that the Eleventh Amendment deprived the District Court of jurisdiction over Tonge's suit. The Eleventh Amendment "bar[s] all private suits against non-consenting States in federal court." Karns v. Shanahan, 879 F.3d 504, 512 (3d Cir. 2018) (quoting Lombardo v. Pa....