                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ____________

                                       No. 13-4541
                                      _____________

                   BOBBY JOHNSON, INDIVIDUALLY AND ON
                 BEHALF OF ALL OTHERS SIMILARLY SITUATED;
                   EDWIN AGUAIZA, INDIVIDUALLY AND ON
                 BEHALF OF ALL OTHERS SIMILARLY SITUATED,
                                               Appellants

                                              v.

                       DRAEGER SAFETY DIAGNOSTICS, INC.
                                ______________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF NEW JERSEY
                          (D.C. Civil No. 2-13-cv-02439)
                    District Judge: Honorable Jose L. Linares
                                  ____________

                       Submitted Under Third Circuit LAR 34.1(a)
                                  November 20, 2014
                                    ____________

               Before: SMITH, HARDIMAN and BARRY, Circuit Judges

                                (Filed: December 9, 2014)
                                      ____________

                                        OPINION*
                                      ____________

BARRY, Circuit Judge


*
 This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
         Bobby Johnson and Edwin Aguaiza appeal from the order of the District Court

dismissing their complaint against Draeger Safety Diagnostics, Inc. based on the Rooker-

Feldman doctrine. We will affirm, though for reasons that differ in part from those of the

Court.

                                             I.

         Plaintiffs Johnson and Aguaiza, New Jersey residents, were arrested for suspected

drunk driving, Johnson in February 2010 in Montclair and Aguaiza in June 2011 in

Linden. Both submitted to breath tests administered using Draeger’s Alcotest 7110

MKIII-C (“Alcotest”) device, which reported, for each, a blood alcohol concentration, or

BAC, above 0.08%. Under New Jersey law, a person operating a motor vehicle with a

BAC of 0.08% or more can be convicted of driving while intoxicated (DWI), N.J.S.A.

§ 39:4-50(a), and Alcotest readings are admissible in DWI prosecutions as evidence of a

per se violation of the statute. State v. Chun, 943 A.2d 114, 120 (N.J. 2008) (“Chun I”),

cert. denied, 555 U.S. 825 (2008). Faced with their Alcotest results, Johnson and

Aguaiza each pleaded guilty to DWI, resulting in a suspension of their driving privileges

and the imposition of fines.

         Use of the Alcotest in New Jersey began with a one-township pilot program, and,

by 2006, the device was being used in seventeen of the state’s twenty-one counties.

During the roll-out, twenty individuals charged in Middlesex County with DWI

challenged the admissibility of their Alcotest results, and their cases were consolidated

for consideration of the evidentiary challenge. See Chun I, 943 A.2d at 121. In March

                                             2
2008, the Supreme Court of New Jersey, having considered the report and

recommendation of its Special Master, concluded that the Alcotest and its then-current

software (called “firmware”) was generally scientifically reliable, and that its results

would be admissible and could be used to prove a per se violation of the DWI statute

with certain modifications and under certain conditions. See id. at 120; see also id. at

170-74. Following Chun I, Alcotest devices were deployed in all New Jersey counties.

In September 2013, the Supreme Court denied a further challenge to the scientific

reliability and admissibility of Alcotest results. See State v. Chun, 73 A.3d 1241 (N.J.

2013) (“Chun II”).

       In April 2013, plaintiffs filed the complaint in this case. By the time of their third

amended complaint, filed four months later, plaintiffs had asserted, on behalf of

themselves and a putative class, two claims against Draeger: a design defect claim under

the New Jersey Products Liability Act (“PLA”), N.J.S.A. 2A:58C-1 to -11 (count 1), and

a common law fraud claim (count 2).

       With respect to their PLA claim, plaintiffs asserted that although the Alcotest

device is intended to measure the volume and duration of a breath sample, it “lacks a

provision to assure that these measurements are accurate or to regularly verify calibration

of these measurements.” (App. at 297.) This, they contended, is a design defect, as

“[p]roper function of the device is dependent on the ability of the device to accurately

measure pulmonary function.” (App. at 298.) Plaintiffs further claimed that medical

tests on plaintiff Johnson, in particular, showed that the exhalation time reported by the

                                              3
device could not have been accurate.

       Plaintiffs alleged in their fraud claim that Hansueli Ryser, Draeger’s vice

president, testified falsely in the Chun factfinding hearing before the Special Master.

They cited his statements that he was “100 percent convinced” that the device was

capable of producing accurate readings; that he “strongly believed” that the device is

scientifically reliable; and that

       no maintenance needed other than verifying, of course, proper operating –
       that it’s operating properly at the time when the unit is calibrated. And
       after that you do not have to maintain it or it’s going to stay alive without
       doing anything to it.
(App. at 307.) Plaintiffs claimed that it is “impossible” to conclude, as Ryser did, that the

Alcotest is scientifically reliable because the device would need to “yield[] the same

results on repeated trials,” and “[b]y design there are no trials when the Alcotest reports

liter volume, blowing time, and flow rate.” (Id.) They alleged that Ryser, a “highly

trained scientist who fully understood the concept of scientific reliability,” had a conflict

of interest because he worked for Draeger and was also testifying as an expert in the

factfinding hearing. (Id.) Plaintiffs concluded, more broadly, that the quoted statements

were false or materially misleading, and that Ryser knew this when he made them.

       Plaintiffs claimed, moreover, that the Special Master relied on Ryser’s statements

in issuing findings, that the Supreme Court relied on the Special Master’s findings when

it issued Chun I, and that the judge in Johnson’s DWI case relied on Chun I in admitting

his Alcotest results. They also asserted that Johnson “had actual receipt and relied on the



                                             4
misstatements of . . . Ryser to his detriment,” and “[c]lass members had actual receipt

from the courts and relied on said misstatements to their detriment.” (App. at 308.)

Plaintiffs contended that the defective design by Draeger and fraud perpetrated by it

proximately caused them injury because conviction was certain based on their Alcotest

results, and forced Johnson to choose between resigning from his job or being fired.

       Draeger moved to dismiss based on Rooker-Feldman, and argued as well that

plaintiffs had failed to plead the requisite elements of both their PLA and fraud claims,

meriting dismissal under Fed. R. Civ. P. 12(b)(6). The District Court granted the motion.

Applying the four-part Rooker-Feldman test, the Court concluded that it was undisputed

that the first and third requirements were met – plaintiffs had lost in state court and their

DWI convictions were rendered before they filed their federal suit. With respect to the

remaining requirements – that plaintiffs were complaining of injuries caused by the state-

court judgments and that they invited review and rejection of those judgments – the Court

concluded that it was the legal framework established in Chun, not the purportedly

erroneous test results or Ryser’s statements, that caused plaintiffs’ alleged injuries.

Further, the Court held, plaintiffs were seeking rulings that would prevent the

enforcement of or render ineffectual the state court orders underlying plaintiffs’

convictions – “including but not limited to the Chun decision itself.” (App. at 11.) The

Court reasoned that a determination in favor of plaintiffs’ claims “would effectively

require a finding that the Chun case was erroneously decided . . . as were [p]laintiffs’

criminal cases, which were indisputedly based on the Chun holding.” (App. at 12.)

                                              5
Finding that Rooker-Feldman applied, the District Court dismissed the complaint for lack

of subject matter jurisdiction. This appeal followed.

                                             II.

       Plaintiffs invoked jurisdiction under 28 U.S.C. § 1332(d). With the caveat that

subject matter jurisdiction is at issue, we have jurisdiction over the final order of

dismissal under 28 U.S.C. § 1291. Great W. Mining & Mineral Co. v. Fox Rothschild

LLP, 615 F.3d 159, 163 n.3 (3d Cir. 2010) (“To the extent that we have subject matter

jurisdiction, we exercise it under 28 U.S.C. § 1291.”). “A district court’s dismissal for

lack of subject matter jurisdiction is a question of law, over which we exercise plenary

review.” McCann v. Newman Irrevocable Trust, 458 F.3d 281, 286 (3d Cir. 2006).

                                             III.

       Plaintiffs contend that the Rooker-Feldman doctrine does not preclude their claims

because they were not parties to the Chun case and are not seeking to overturn it or their

DWI convictions. We agree with the District Court that Rooker-Feldman precludes the

exercise of jurisdiction over plaintiffs’ design defect claim, but conclude that their fraud

claim does not fall within its scope.

                                             A.

       Grounded in 28 U.S.C. § 1257, which vests appellate jurisdiction over state-court

judgments exclusively in the Supreme Court of the United States, the Rooker-Feldman




                                              6
doctrine1 circumscribes federal subject matter jurisdiction by precluding a district court

from hearing cases “brought by state-court losers complaining of injuries caused by state-

court judgments rendered before the district court proceedings commenced and inviting

district court review and rejection of those judgments.” Exxon Mobil Corp. v. Saudi

Basic Indus. Corp., 544 U.S. 280, 283-85 (2005). As the District Court recognized, the

doctrine applies if four requirements are met: “(1) the federal plaintiff lost in state court;

(2) the plaintiff ‘complain[s] of injuries caused by [the] state-court judgments’; (3) those

judgments were rendered before the federal suit was filed; and (4) the plaintiff is inviting

the district court to review and reject the state judgments.” Great W. Mining, 615 F.3d at

166 (alterations in original) (quoting Exxon, 544 U.S. at 284).

       There is no question that the third element is satisfied, as Chun I and plaintiffs’

DWI cases preceded this action. It is also clear that the first element is met. Plaintiffs

argue, however, that they were not parties to Chun, and that Rooker-Feldman does not

apply when the federal plaintiff was not a party to the state case. Plaintiffs are correct

that Rooker-Feldman has been held inapplicable when “the party against whom the

doctrine is invoked was not a party to the underlying state-court proceeding.” Lance v.

Dennis, 546 U.S. 459, 464 (2006) (per curiam). Plaintiffs may not have been parties to

Chun I, which was decided well before plaintiffs’ arrests in 2010 and 2011, but they were

certainly parties in their respective DWI cases. Moreover, Johnson unsuccessfully

attempted to challenge the admissibility of his Alcotest results, see State v. Johnson, 2011

1
 See Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), and District of Columbia Court
of Appeals v. Feldman, 460 U.S. 462 (1983).
                                           7
WL 2410039 (N.J. Super. Ct. App. Div. May 12, 2011), and, given that plaintiff Aguaiza

pleaded guilty after his Alcotest results were “admitted on a per se basis,” Aguaiza either

did not challenge the admissibility of his results or did so unsuccessfully. (See App. at

291.) Plaintiffs, therefore, lost in state court.

       For both claims, then, the question becomes whether the second and fourth

elements have been met. The second examines the source of the plaintiffs’ injury: “when

the source . . . is the defendant’s actions (and not the state court judgments), the federal

suit is independent, even if it asks the federal court to deny a legal conclusion reached by

the state court.” Great W. Mining, 615 F.3d at 167.

       The source of the injury targeted by plaintiffs’ PLA claim is the state courts’

evidentiary rulings in their DWI cases, not Draeger. Plaintiffs have alleged that they

were tested using a device that could not be fully calibrated, and that based on the

(allegedly erroneous) Alcotest results, they faced “certain conviction,” suffered physical

and emotional injuries, and, in Johnson’s case, had to decide whether to resign or be

terminated from his job. These injuries can be traced directly to the state court’s decision

in each plaintiff’s case that his Alcotest reading was admissible, and to the subsequent

DWI conviction. It was not Draeger’s design, then, that caused plaintiffs’ injuries; it was

the state court’s acceptance of the Alcotest as scientifically reliable, and of its consequent

admissibility determination.

       The fraud claim is different. In Great Western, where the plaintiff alleged that its

state-court losses resulted from “a ‘corrupt conspiracy’” between an alternative dispute

                                                8
resolution provider and members of the state judiciary, we held that the plaintiff’s injury

was not caused by the state judgments; rather, the assertion was that the “alleged

conspiracy violated [the plaintiff’s] right to be heard in an impartial forum.” 615 F.3d at

161. In essence, the claim was that the plaintiff was “forced to litigate in a rigged

system.” Id. at 171. Similarly, in Williams v. BASF Catalysts LLC, the plaintiffs alleged

that a company and its law firm conspired to conceal evidence of asbestos in the

company’s products to minimize its tort liability. 765 F.3d 306, 310-11 (3d Cir. 2014).

We held that Rooker-Feldman did not deprive the district court of jurisdiction over the

case, which involved claims for, inter alia, fraud and fraudulent concealment. Id. at 315.

We explained that the claims “hinge[d] on [the defendants’] actions before and during

earlier asbestos-injury lawsuits.” Id. As the suit did “not concern state-court judgments,

but rather independent torts committed to obtain them,” Rooker-Feldman did not apply.

Id.

       Here, plaintiffs have alleged that Ryser made false statements that the Supreme

Court relied upon in deciding Chun I, and that the judge presiding over Johnson’s DWI

case relied on Chun in admitting Johnson’s Alcotest results. This is akin to contending

that, as in Great Western, plaintiffs were “forced to litigate in a rigged system,” or, as in

BASF, their convictions and/or the Chun decision were procured on the basis of fraud.

The source of the injury complained of via plaintiffs’ fraud claim, then, is Draeger, not

the state court judgments.

       We proceed, however, to nonetheless discuss the remaining Rooker-Feldman

                                              9
element for both claims. This requirement examines whether a district court would be

required to conduct “‘a review of the proceedings already conducted by the “lower”

tribunal to determine whether it reached its result in accordance with law.’” Great W.

Mining, 615 F.3d at 169 (quoting Bolden v. City of Topeka, Ks., 441 F.3d 1129, 1143

(10th Cir. 2006)). Even if the matter was already litigated in state court, a federal suit

presenting “some independent claim, even if that claim denies a legal conclusion reached

by the state court,” is permissible. Id. (quoting Exxon, 544 U.S. at 293) (internal

quotation marks omitted).2

       Plaintiffs’ PLA claim seeks federal review of whether the Alcotest produces valid

BAC readings in view of its alleged calibration shortcomings. This not only seeks to

revisit what was already presented to the state court – specifically, an argument that the

results were not accurate – but also effectively requests rejection of the state courts’

ultimate determination that the results were admissible in the DWI cases because they

were scientifically reliable. In Johnson’s case, for example, he requested an evidentiary

hearing on the admissibility of his Alcotest results, arguing that his pulmonary expert had

2
  Prior to Exxon, our formulation of the Rooker-Feldman doctrine held a federal case
barred “‘where the claim raised in federal court was actually litigated in state court’ or
‘where the federal claim is inextricably intertwined with the state adjudication.’” Gary v.
Braddock Cemetery, 517 F.3d 195, 200 n.5 (3d Cir. 2008). As part of the latter inquiry,
we examined whether “federal relief [could] only be predicated upon a conviction that
the state court was wrong.” Taliaferro v. Darby Twp. Zoning Bd., 458 F.3d 181, 192 (3d
Cir. 2006) (citation and internal quotation marks omitted). We have since recognized,
however, that a measure of tension is permissible: the federal outcome can permissibly
undermine a conclusion or rationale of the state judgment without implicating Rooker-
Feldman. See Great W. Mining, 615 F.3d at 173. As such, the District Court’s concern
that the ruling plaintiffs sought would “render ineffectual” the state court rulings does not
necessarily compel a finding that the fourth Rooker-Feldman requirement is met.
                                             10
concluded that his Alcotest results “‘could not be valid.’” Johnson, 2011 WL 2410039,

at *1. This is exactly what Johnson argued before the District Court, framing it instead as

a product-liability issue.

       Again, however, the fraud claim is different. Plaintiffs are not inviting rejection of

state judgments, but are presenting an “independent claim” relating to how the state-court

decisions on admissibility were reached; i.e., on the basis of testimony that was allegedly

untrue. See, e.g., Johnson v. Pushpin Holdings, LLC, 748 F.3d 769, 773 (7th Cir. 2014)

(federal suit seeking damages for “a fraud that resulted in a judgment adverse to the

plaintiff” was not barred because it “does not seek to disturb the judgment of the state

court, but to obtain damages for the unlawful conduct that misled the court into issuing

the judgment”); Parker v. Lyons, 757 F.3d 701, 706 (7th Cir. 2014) (“Because [the

plaintiff’s] claims are premised on detailed allegations that the winning party obtained a

favorable civil judgment by corrupting the state judicial process, Rooker-Feldman does

not bar them.”). While a decision that Chun I and/or plaintiffs’ DWI convictions were

tainted by alleged fraud would undermine the force of those judgments, this is not the

same as asking that the state judgments be rejected.

       In sum, we conclude that Rooker-Feldman barred the exercise of subject matter

jurisdiction over plaintiffs’ product liability claim, but not their fraud claim.

                                                   B.

       Notwithstanding the above, plaintiffs’ fraud claim fails for another reason: they

have not pleaded a plausible claim. See OSS Nokalva, Inc. v. European Space Agency,

                                              11
617 F.3d 756, 761 (3d Cir. 2010) (“[W]e ‘may affirm a judgment on any ground apparent

from the record, even if the district court did not reach it.’” (quoting Kabakjian v. United

States, 267 F.3d 208, 213 (3d Cir. 2001)). To survive dismissal under Fed. R. Civ. P.

12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a

claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Id.

       In New Jersey, a common law fraud claim requires “(1) a material

misrepresentation of a presently existing or past fact; (2) knowledge or belief by the

defendant of its falsity; (3) an intention that the other person rely on it; (4) reasonable

reliance thereon by the other person; and (5) resulting damages.” Gennari v. Weichert

Co. Realtors, 691 A.2d 350, 367 (N.J. 1997). Plaintiffs’ claim fails on the first element,

as the cited statements by Ryser represent his opinion regarding the scientific reliability

of the Alcotest and whether the device needed ongoing maintenance. Statements of

opinion are not “presently existing or past fact[s].” See Suarez v. Eastern Int’l Coll., 50

A.3d 75, 86 (N.J. Super. Ct. App. Div. 2012) (stating that neither “expressions of

opinion” nor “‘puffery’” can establish the first element of common law fraud claim),

certif. denied, 59 A.3d 1290 (N.J. 2013).

       Even were these statements construed as fact rather than opinion, plaintiffs have

failed to adequately plead that the statements were false, or that Ryser or Draeger knew

                                             12
or believed that they were false. To be sure, they allege these elements, but only in the

most conclusory fashion – contending that the cited testimony “was false or constituted

material misleading statements . . . by Mr. Ryser, who was aware of the falsity of the

statements when he made them under oath.” (App. at 307.) However, “‘a formulaic

recitation of the elements of a cause of action’” does not satisfy the plausible pleading

standard. Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).

       Plaintiffs come close to adequately alleging the falsity of the scientific-reliability

statements when they aver that it is “impossible” to conclude that the Alcotest is

scientifically reliable because that would require it to yield the same results upon multiple

tests and no tests are available for the “volume, blowing time, and flow rate.” (App. at

307.) But even taking as true that Ryser is a “highly trained scientist” who grasps the

concept of scientific reliability, plaintiffs’ allegations are simply not enough to permit an

inference that Ryser’s statement that he believed the overall instrument to be

scientifically reliable was false because certain sub-parameters could not be routinely

tested, or to infer further that he believed his statements to be false.3

                                              IV.

       For the foregoing reasons, the order of the District Court will be affirmed.


3
  Plaintiffs have argued to us that the District Court’s dismissal of their complaint
violated the Ninth and Tenth Amendments of the United States Constitution. They
waived this argument by failing to raise it below. In re Diet Drugs Prod. Liab. Litig., 706
F.3d 217, 226 (3d Cir. 2013). In any event, the argument – essentially, that plaintiffs
have a constitutional right to a federal forum in which to assert their rights under state
product liability law, apparently notwithstanding the requirements of subject matter
jurisdiction – lacks merit.
                                               13
