Peter Dipietro v. New Jersey Family Support Payment Center

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-3022
___________
PETER DIPIETRO,
Appellant
v.
NEW JERSEY FAMILY SUPPORT PAYMENT CENTER; SUPERIOR COURT OF
NEW JERSEY; GLOUCESTER COUNTY PROBATION SERVICES; SUSAN
SASSER, Vicinage Assistant Chief Probation Officer; NEW JERSEY MOTOR
VEHICLE COMMISSION; SHARON HARRINGTON, Chief Administrator; CHRISTIE
MORGANDALE, Case Worker; JOANNA VASSALLO
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D. N.J. Civil No. 08-cv-04761)
District Judge: Honorable Freda L. Wolfson
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1
March 18, 2010
Before: RENDELL, HARDIMAN AND ALDISERT, Circuit Judges
(Opinion filed: March 18, 2010)
_________
OPINION
_________
PER CURIAM
Peter DiPietro, proceeding pro se, appeals an order of the United States District
Court for the District of New Jersey dismissing his civil rights action. We will affirm the

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District Court’s order.
DiPietro alleged in his complaint that he and his wife, Joanna Vassallo, were
divorced in 2001. The Superior Court of New Jersey, Chancery Division, Family Part,
ordered DiPietro to pay child support through the New Jersey Family Support Payment
Center (“FSPC”). DiPietro averred that he made child support payments by personal
and/or business check for seven years. DiPietro stated that in 2008 he was notified that
his checks would no longer be accepted due to a “dishonored check history” and that he
must make future payments by money order, cashier’s check, certified check, or
electronic payment. Compl. at 4. DiPietro alleged that he wrote a letter to the FSPC and
disputed that any of his checks were returned. He complained that the new payment
requirement imposed an undue hardship. DiPietro stated that he continued to make
payments by personal and/or business check but the FSPC returned the checks to him.
In May 2008, the Superior Court of New Jersey, Probation Services Division for
the Vicinage of Gloucester (“Probation Services”) notified DiPietro that he was in arrears
and that his weekly payment plus a portion of his arrears would be withheld from his
income unless he contested. DiPietro averred that Probation Services also notified him
that a bench warrant for his arrest would be issued and that his driving privileges would
be suspended. The New Jersey Motor Vehicles Commission sent DiPietro a notice
confirming the suspension.

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Younger v. Harris, 401 U.S. 37 (1971).1
DiPietro argues in his brief that the standards for dismissal of a complaint under Rule2
12(b)(6) violate the constitutional right to a jury trial. DiPietro did not raise his argument,
which consists of reproduced portions of a law review article, in District Court. Because
there are no exceptional circumstances justifying review, we will not entertain this
3
DiPietro filed his complaint against the FSPC, Probation Services, Vicinage
Assistant Chief Probation Officer Susan Sasser, the New Jersey Motor Vehicle
Commission, its Chief Administrator Sharon Harrington, Case Worker Christie
Morgandale, and his ex-wife, Joanna Vassallo. DiPietro claimed that the defendants
violated, among other things, his due process rights, his right to equal protection, the Fair
Debt Collection Practices Act, 15 U.S.C. §§ 1692-1692p (“FDCPA”), and the New Jersey
Constitution. He also brought state law claims for malicious prosecution, malicious abuse
of process, and intentional and negligent infliction of emotional distress. DiPietro sought
declaratory and injunctive relief and compensatory and punitive damages.
The District Court granted the defendants’ motions to dismiss the complaint,
concluding that DiPietro failed to state a claim for relief against Vassallo and against any
defendant under the FDCPA. The District Court also dismissed DiPietro’s constitutional
and state law claims against the state defendants under the Younger abstention doctrine.1
This appeal followed.
We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review of an order
granting a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) is plenary.
Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996). We also exercise plenary review over the2

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argument. Bagot v. Ashcroft, 398 F.3d 252, 256 (3d Cir. 2005).
The District Court also correctly ruled that DiPietro fails to state a claim against the3
state defendants under the FDCPA. See Mabe v. G.C. Servs. Ltd. P’ship, 32 F.3d 86, 88
(4th Cir. 1994) (holding child support obligations are not “debts” under FDCPA);
Heredia v. Green, 667 F.2d 392, 394 (3d Cir. 1981) (holding state officers and employees
attempting to collect a debt in the performance of their official duties are not “debt
collectors” for purposes of the FDCPA).
4
question of whether the elements required for abstention exist. Marran v. Marran, 376
F.3d 143, 154 (3d Cir. 2004). If the elements exist, we review the decision to abstain for
abuse of discretion. Id.
We agree with the District Court that DiPietro fails to state a claim for relief
against Vassallo. DiPietro has not alleged any facts supporting the conclusion that
Vassallo, who is the recipient of the child support award, acted under color of state law.
He thus fails to state a claim against her under 42 U.S.C. § 1983. See Kost v.
Kozakiewicz, 1 F.3d 176, 184 (3d Cir. 1993). DiPietro also fails to state a claim against
Vassallo under the FDCPA because the FDCPA applies to debt collectors and Vassallo is
not a debt collector as defined by the statute. Pollice v. Nat’l Tax Funding, L.P., 225 F.3d
379, 403 (3d Cir. 2000). We also agree, for substantially the reasons stated by the3
District Court, that DiPietro fails to state a claim against Vassallo under the New Jersey
Constitution, for malicious prosecution or abuse of process, and for intentional or
negligent infliction of emotional distress.
As noted above, the District Court dismissed DiPietro’s constitutional and state
law claims against the state defendants under the Younger abstention doctrine, which in

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certain circumstances requires a district court to abstain from exercising jurisdiction over
a claim where its resolution would interfere with an ongoing state proceeding. Lazaridis
v. Wehmer, 591 F.3d 666, 670 (3d Cir. 2010). Abstention is appropriate only when: (1)
there are ongoing state proceedings that are judicial in nature; (2) the state proceedings
implicate important state interests; and (3) the state proceedings provide an adequate
opportunity to raise the federal claims. Id. The District Court applied our decision in
Anthony v. Council, 316 F.3d 412, 418 (3d Cir. 2003), in which we held that abstention
was proper where persons in New Jersey, who had been incarcerated for failing to comply
with their child support orders, claimed violations of their due process rights.
The District Court correctly found that the requirements for abstention are met
here. First, DiPietro alleges in his complaint that there are ongoing proceedings in New
Jersey state court. Compl. at 3. We also recognized in Anthony that New Jersey courts
are charged with monitoring, enforcing, and modifying child support obligations
throughout the duration of a child support order. Anthony, 316 F.3d at 419. Second,
there is no question that state child support proceedings implicate important state
interests. Id. at 421. Finally, DiPietro is able to raise his claims in state court and to
appeal adverse decisions through the state appellate system and to the United States
Supreme Court. Id. at 422. We also agree with the District Court that, although DiPietro
contends that bias exists in the state system, he has not shown a legitimate extraordinary
circumstance justifying federal intervention. Abstention was thus proper in this case. See

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Anthony involved claims for injunctive and declaratory relief. DiPietro does not4
argue in his brief that the District Court erred in dismissing his claims for compensatory
and punitive damages and we have thus not considered this question. See F.D.I.C. v.
Deglau, 207 F.3d 153, 169-70 (3d Cir. 2000) (issue not raised in opening brief is waived).
DiPietro’s motion for leave to file a Rule 28(j) letter that exceeds the permissible5
word limit is granted.
6
also Lazaridis, 591 F.3d at 670-71 (holding abstention appropriate where plaintiff brought
due process challenge to registration and enforcement of French custody order in
Delaware state court).4
Accordingly, we will affirm the District Court’s order.5

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