                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 15-2602
                                     _____________

                                    SOOK HEE LEE,
                                                 Appellant

                                             v.

                               JONATHAN KIM;
                            STATE OF NEW JERSEY;
                        ATTORNEY GENERAL NEW JERSEY
                                _____________

                     On Appeal from the United States District Court
                             for the District of New Jersey
                             (D.C. Civ No. 2-14-cv-07560)
                        District Judge: Hon. Susan D. Wigenton
                                    ______________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                   March 22, 2016
                                  ______________

      Before: GREENAWAY, JR., VANASKIE, and SHWARTZ, Circuit Judges.

                                  (Filed: June 20, 2016)
                                       ___________

                                        OPINION*
                                       ___________

VANASKIE, 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.
       Appellant Sook Hee Lee appeals the District Court’s order dismissing her

Amended Complaint challenging the validity of a New Jersey statute which requires that

promises to provide financial support in the context of a non-marital personal relationship

be in writing with the advice of counsel in order to be enforceable. For the reasons that

follow, we conclude that Lee failed to plead facts in her Amended Complaint that could

plausibly give rise to an entitlement to relief. Accordingly, we will affirm the judgment

of the District Court.

                                                 I.

       Sook Hee Lee and Jonathan Kim began dating in June of 2010. Approximately

one year later, Lee became pregnant with Kim’s child and, according to Lee, Kim orally

promised to support her financially. After Lee gave birth to the child in March of 2012,

Lee alleges that Kim presented a financial support arrangement to her and again orally

promised to support her and the child. In May of 2014, however, after their romantic

relationship dissolved, Kim offered Lee a “one-time buyout” of his financial obligations

for a lump sum of $100,000, subject to a number of conditions.

       Lee responded by filing a Complaint in the New Jersey Superior Court seeking:

(1) palimony payments; (2) a child support modification; and (3) discovery of Kim’s

financials. Kim demanded that Lee withdraw her palimony claim, relying on a 2010

amendment to New Jersey’s Statute of Frauds, known as the “Palimony Law,”1 N.J. Stat.

Ann. § 25:1-5, which states:


       “Palimony” refers to a financial support arrangement that is entered into by
       1

unmarried couples who have, or had, a marriage-like relationship.
                                             2
              No action shall be brought upon any of the following
              agreements or promises, unless the agreement or promise,
              upon which such action shall be brought or some
              memorandum or note thereof, shall be in writing, and signed
              by the party to be charged therewith, or by some other person
              thereunto by him lawfully authorized:
              ....

              h. A promise by one party to a non-marital personal
              relationship to provide support or other consideration for the
              other party, either during the course of such relationship or
              after its termination. For the purposes of this subsection, no
              such written promise is binding unless it was made with the
              independent advice of counsel for both parties.

N.J. Stat. Ann. § 25:1-5(h). New Jersey enacted the Palimony Law in order to “provid[e]

greater clarity in the enforcement of palimony agreements.” (App. 400.) Following

Kim’s demand, Lee withdrew her Complaint in the New Jersey Superior Court.

       On December 3, 2014, Lee brought this lawsuit in the United States District Court

for the District of New Jersey against Kim and the State of New Jersey, challenging the

constitutionality of the Palimony Law pursuant to 42 U.S.C. § 1983. Specifically, Lee

asserted that the Palimony Law: (1) infringed upon her right to free speech; (2) denied

her equal protection under the law; and (3) violated her constitutional right to privacy.2

On January 12, 2015, New Jersey filed a motion to dismiss the Complaint, asserting

Eleventh Amendment immunity. Lee responded by filing a “Cross-Motion for Summary

Judgment and for Judgment on the Pleadings” on January 28, 2015. (App. 78.) On April

1, 2015, New Jersey filed a brief in opposition to Lee’s motion, and in further support of

its motion to dismiss, arguing again that it was immune from suit under the Eleventh

       2
        Lee also contended that the Palimony Law infringed upon her right to make
contracts. Lee, however, does not pursue this claim on appeal.
                                             3
Amendment and that Lee’s Complaint failed to state a claim upon which relief could be

granted. Thereafter, Lee filed a motion for leave to amend her Complaint, seeking to

substitute the acting Attorney General of New Jersey as a defendant in place of the State

of New Jersey. On May 11, 2015, Kim also filed a motion to dismiss.

       On June 17, 2015, the District Court heard oral argument on New Jersey’s motion

to dismiss, Kim’s motion to dismiss, and Lee’s motion for summary judgment. The

District Court proceeded as if Lee’s Complaint had been amended to substitute the acting

Attorney General of New Jersey as the proper defendant.3 The District Court did not

analyze Lee’s claims in detail, except for her Equal Protection claim, which the District

Court concluded should be analyzed under rational basis review because Lee did not

assert she was a member of a protected class. After the completion of the parties’

arguments, the District Court issued a ruling from the bench, denying Lee’s motion for

summary judgment and granting the motions to dismiss the Amended Complaint.4

Thereafter, Lee timely filed this appeal.




       3
         On appeal, Lee proceeds as if her claims are directed at the Attorney General of
New Jersey, not the State of New Jersey. As such, this opinion will treat all claims
against the State of New Jersey as dismissed and only address Lee’s claims as they relate
to the Attorney General of New Jersey.
       4
         In granting Kim’s motion to dismiss, the District Court concluded “[t]here’s
nothing that’s been presented to the Court in its pleadings . . . that would indicate that he
somehow has acted under color of state law and would therefore be subject to any
violations or be deemed to have violated anything under [§] 1983.” (Oral Arg. Tr. at 21–
22.) The Court’s dismissal as to Kim was summarily affirmed by this Court and will not
be further addressed in this opinion. See Order, September 10, 2015, Lee v. Kim, No. 15-
2602 (3d Cir. 2015).
                                              4
                                                II.

       The District Court had jurisdiction under 28 U.S.C. § 1331. We have appellate

jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over a District Court’s

decision to grant a motion to dismiss pursuant to Federal Rule of Civil Procedure

12(b)(6). Fowler v. UPMC Shadyside, 578 F.3d 203, 206 (3d Cir. 2009). In considering

a Rule 12(b)(6) motion, we “are required to accept as true all allegations in the complaint

and all reasonable inferences that can be drawn from them after construing them in the

light most favorable to the nonmovant.” Foglia v. Renal Ventures Mgmt., LLC, 754 F.3d

153, 154 n.1 (3d Cir. 2014) (quoting Jordan v. Fox, Rothschild, O’Brien & Frankel, 20

F.3d 1250, 1261 (3d Cir. 1994)). “However, . . . we disregard legal conclusions and

recitals of the elements of a cause of action supported by mere conclusory statements.”

Connelly v. Lane Constr. Corp., 809 F.3d 780, 786 n.2 (3d Cir. 2016).

                                               III.

       “Under the pleading regime established by Twombly and Iqbal, a court reviewing

the sufficiency of a complaint must take three steps.” Id. at 787 (footnote omitted). First,

the reviewing court must “tak[e] note of the elements a plaintiff must plead to state a

claim.” Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009). Second, the court should identify

allegations “that, because they are no more than conclusions, are not entitled to the

assumption of truth.” Id. at 679. Finally, “[w]hen there are well-pleaded factual

allegations, a court should assume their veracity and then determine whether they

plausibly give rise to an entitlement to relief.” Id.



                                               5
       A. Step One: Noting the Elements Necessary to State a Claim

       The first step requires the reviewing Court to take note of the elements the plaintiff

must plead to state a claim. To state a claim under § 1983, a plaintiff must “prove two

essential elements: (1) that the conduct complained of was committed by a person acting

under color of state law; and (2) that the conduct deprived the plaintiff of rights,

privileges, or immunities secured by the Constitution or laws of the United States.”

Schneyder v. Smith, 653 F.3d 313, 319 (3d Cir. 2011). Here, Lee complains she is

deprived of her right to free speech, her right to equal protection under the law, and her

constitutional right of privacy. Because the Attorney General of New Jersey’s

enforcement of the Palimony Law is accomplished under the color of state law, Lee’s

claims will survive if she pleads sufficient factual allegations “to raise a reasonable

expectation that discovery will reveal evidence” that she was deprived of any of these

rights. See Connelly, 809 F.3d at 789 (quoting Phillips v. Cty. of Allegheny, 515 F.3d

224, 234 (3d Cir. 2008)).

       B. Step Two: Identifying and Excluding Conclusory Allegations

       “At the second step in our pleading analysis, we identify those allegations that,

being merely conclusory, are not entitled to the presumption of truth.” Id.; James v. City

of Wilkes-Barre, 700 F.3d 675, 679 (3d Cir. 2012) (In reviewing the sufficiency of a

complaint under Rule 12(b)(6), “we disregard rote recitals of the elements of a cause of

action, legal conclusions, and mere conclusory statements.”). In our plenary review of

the motion to dismiss, we find the following allegations are mere legal conclusions: (1)

that the Palimony Law “impairs plaintiff’s rights to free speech, to family planning, and

                                              6
privacy rights” (App. 409); (2) that the Palimony Law “is a content based restriction

which invades plaintiff’s family planning rights and privacy rights of the most intimate

matters” (App. 410); (3) that “by the continuing effectiveness and validity of the

[Palimony Law], plaintiff is denied equal protection of the laws under the U.S.

Constitution” (App. 411); and (4) that “by the continuing effectiveness and validity of the

[Palimony Law], plaintiff is denied her privacy rights relating to familial matters under

the U.S. Constitution” (App. 411). Because these allegations are “mere legal

conclusions,” they will be discounted. Connelly, 809 F.3d at 790.

       C. Step Three: Construing the Allegations in Lee’s Favor

       The final step in our analysis is to take the remaining allegations in the complaint,

“assume their veracity[,] and then determine whether they plausibly give rise to an

entitlement to relief.” Id. at 787 (quoting Iqbal, 556 U.S. at 679). When stripped of its

legal conclusions, Lee’s Amended Complaint consists of the following allegations: (1)

background facts about Lee’s and Kim’s relationship, and the lawsuit Lee filed in New

Jersey Superior Court; (2) statistics regarding the prevalence of childbirth out of wedlock

in the United States; (3) an analysis of the origins of enforcing palimony agreements in

New Jersey; (4) statements from the New Jersey legislature and New Jersey Governor at

the time the Palimony Law was enacted; (5) an analysis of New Jersey case law

concerning the retroactivity of the Palimony Law; and (6) lengthy quotations from Stilp v.

Contino, 613 F.3d 405 (3d Cir. 2010), concerning First Amendment legal principles.

Even accepting these allegations as true, we find that they do not plausibly give rise to an



                                             7
entitlement to relief for infringing Lee’s right to free speech, denying Lee equal

protection under the law, or violating Lee’s constitutional right to privacy.

       First, when the Amended Complaint is stripped of Lee’s conclusory allegation that

the Palimony Law is “a content based restriction” (App. 410), it contains no factual

allegations concerning how the Palimony Law prohibits, compels, or restricts speech in

any way. Lee’s Amended Complaint contains no allegations from which we could

plausibly conclude that the Palimony Law compels Lee to say anything, prevents Lee

from saying anything, or restricts the manner of Lee’s speech. Quite simply, the

Palimony Law “neither limits what [Lee] may say nor requires [Lee] to say anything” and

there are no allegations in Lee’s Amended Complaint from which we could plausibly

conclude otherwise. Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S.

47, 60 (2006). Accordingly, Lee’s Amended Complaint fails to state a First Amendment

claim upon which relief can be granted.

       Second, with respect to the Equal Protection claim, Lee’s Amended Complaint

does not allege intentional discrimination. See Hassan v. City of New York, 804 F.3d

277, 294 (3d Cir. 2015) (“To state an equal-protection claim, Plaintiffs must allege (and

ultimately prove) ‘intentional discrimination.’” (quoting Washington v. Davis, 426 U.S.

229, 241 (1976))). Additionally, because Lee does not allege that she is a member of a

“suspect” or “quasi-suspect” class, her claim would be subject to rational basis review.

See id. at 298–99. Lee would not plausibly be entitled to relief under this standard

because, as the District Court observed, the Palimony Law is “extremely rationally

related to the end goal” (Oral Arg. Tr. at 23), of “providing greater clarity in the

                                              8
enforcement of palimony agreements” (App. 400). See F.C.C. v. Beach Commc’ns, Inc.,

508 U.S. 307, 313 (1993) (holding that a law survives rational basis review so long as

there is “any reasonably conceivable state of facts that could provide a rational basis for

the classification”). Accordingly, Lee’s Amended Complaint fails to state an equal

protection claim upon which relief can be granted.

       Finally, Lee’s Amended Complaint contains no factual allegations concerning how

the Palimony Law infringes upon her constitutional right to privacy. The constitutional

right to privacy encompasses “the interest in independence in making certain kinds of

important decisions.” C.N. v. Ridgewood Bd. of Educ., 430 F.3d 159, 178 (3d Cir. 2005)

(quoting Hedges v. Musco, 204 F.3d 109, 121 (3d Cir. 2000)). This includes “matters

relating to marriage, procreation, contraception, family relationships, and parental child

rearing and education decisions.” Malleus v. George, 641 F.3d 560, 565 (3d Cir. 2011).

Lee’s Amended Complaint contains no allegations concerning how the Palimony Law

invades upon her autonomy in making decisions on these matters, or how it usurps Lee’s

ability to make decisions concerning a palimony agreement. To the contrary, Lee is still

free to enter into any palimony arrangement she desires, on whatever terms she and the

other party agree. The Palimony Law only requires Lee to memorialize an agreement

with the advice of counsel if she wishes to enforce that agreement in a New Jersey court.

Accordingly, Lee’s Amended Complaint fails to state a constitutional right of privacy

claim upon which relief can be granted.

                                              IV.

       For the foregoing reasons, we will affirm the judgment of the District Court.

                                             9
