Shawe et al v. Pincus, Esq. et al
MEMORANDUM OPINION. Signed by Judge Gregory M. Sleet on 9/26/2017. (mdb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
PHILIP R. SHAWE and
ROBERT B. PINCUS, ESQ., in his official
capacity as court-appointed custodian, and
JEFFREY W. BULLOCK, in his official
capacity as Secretary of State for the State
Civ. No. 17-277-GMS
David L. Finger, Esquire of Finger & Slanina, LLC, Wilmington, Delaware. Counsel for
Plaintiff Philip R. Shawe. Of Counsel: David B. Goldstein, Esquire of Rabinowitz, Boudin,
Standard, Krinsky & Lieberman, P.C., New York, New York.
Jeremy D. Eicher, Esquire of Cooch & Taylor, PA, Wilmington, Delaware. Counsel for Plaintiff
Douglas D. Herrman, Esquire of Pepper Hamilton LLP, Wilmington, Delaware. Counsel for
Defendant Robert B. Pincus. Of Counsel: John K. Villa, Esquire, Charles Davant IV, Esquire,
and Anne M. Rucker, Esquire of Williams & Connolly LLP, Washington DC.
Joseph C. Handlon, Esquire, Lauren E. Maguire, Esquire, and Ryan P. Connell, Esquire of State
of Delaware Department of Justice, Wilmington, Delaware. Counsel for Defendant Jeffrey W.
Dated: September ~' 2017
This case concerns state-court litigation in which the Delaware Court of Chancery (the
"Chancery Court") ordered the sale of TransPerfect Global, Inc. ("TransPerfect") over the
objections of Plaintiffs Philip R. Shawe ("Shawe") and Shirley Shawe ("Ms. Shawe," and
collectively the "Shawes" or "Plaintiffs").
Plaintiffs are two of the three stockholders of
TransPerfect. The third stockholder, Elizabeth Elting ("Elting"), supports the sale. Defendants
are the court-appointed custodian responsible for overseeing the sale of TransPerfect (the
"Custodian") and the Delaware Secretary of State (the "Secretary," and collectively, the
"Defendants"). The Secretary was not involved in the state-court litigation, but may be statutorily
required to take certain administrative actions in the future if the sale is in the form of a merger or
consolidation. Plaintiffs' claims, brought pursuant to 42 U.S.C. § 1983, seek: (1) a declaratory
judgment that the court-ordered sale violates the Takings and Due Process Clauses of the Fifth and
Fourteenth Amendments to the United States Constitution, and (2) an injunction prohibiting
Defendants from carrying out their duties to effectuate with the sale.
The court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331.
Currently before the court are Defendants' motions to dismiss. (D.I. 11; D.I. 14; D.I. 31; D.I. 32). 1
Defendants have raised a multitude of arguments as to why the complaint should be dismissed,
including the Rooker-Feldman doctrine, resjudicata, Younger abstention, Burford abstention, and
While the motions to dismiss (D .I. 11; D .I. 14) were pending, Plaintiffs filed a
supplemental complaint (D.I. 30). Afterwards, Defendants filed new motions to dismiss that relied
on their original briefs. (D.I. 31; D.I. 32). This memorandum opinion addresses all four motions
the failure to state a claim under Rule 12(b)(6). (D.I. 13; D.I. 15). For the reasons discussed
below, the court finds that the complaint should be dismissed pursuant to the Rooker-Feldman
doctrine. Accordingly, it does not reach Defendants' other arguments.
TransPerfect is a Delaware corporation that provides worldwide translation and litigation
support services. (D.I. 30 ifil 16, 20). Shawe and Elting are the co-founders, co-Chief Executive
Officers, and before the appointment of the Custodian, the sole members of the board of directors.
(Id. at if 18). In 2014, the Chancery Court consolidated for trial several actions Elting and Shawe
had filed against each other in that court. Jn re Shawe & Elting LLC, 2015 WL 4874733, at *24
(Del. Ch. Aug. 13, 2015).
Relevant to this action, Elting filed two petitions seeking the
appointment of a custodian for TransPerfect pursuant to 8 Del. C. § 226(a): one captioned Jn re
TransPerfect Global, Inc., C.A. No. 9700-CB and the other captioned Elting v. Shawe, C.A. No.
10449-CB. 2 Id. at *18 & *23. After a six-day trial on the merits, the Chancery Court issued an
opinion and order (the "Merits Opinion" and "Custodian Order") on August 13, 2015 that, among
other things, entered judgment in favor of Elting and against the Shawes on the petitions to appoint
a custodian. (BL-1282; BL-1283). 3 The Custodian Order instructed the Custodian to prepare a
Section 226(a) provides for the appointment of a custodian when: (1) "the stockholders are
so divided that they have failed to elect successors to directors whose terms have expired;" or (2)
"[t]he business of the corporation is suffering or is threatened with irreparable injury because the
directors are so divided respecting the management of the affairs of the corporation that the
required vote for action by the board of directors cannot be obtained and the stockholders are
unable to terminate this division." 8 Del. C. § 226(a).
Because the parties did not provide a copy of the state-court docket, the court cites where
necessary to the docket provided in Bloomberg Law for the action captioned In re TransPerfect
Global, Inc., C.A. No. 9700-CB. These documents are either incorporated into the complaint by
reference and/or subject to judicial notice. Siwulec v. JM Adjustment Serv., LLC, 465 Fed. App'x
200, 202 (3d Cir. 2012).
proposed plan of sale for TransPerfect. (D.I. 30
50). On August 24, 2015, the Shawes filed a
motion seeking entry of a final judgment or certification of an interlocutory appeal for the Merits
Opinion and Custodian Order. (Id.
53). The Chancery Court denied the motion, because it
created the prospect of piecemeal appeals, including later potential challenges to the form of a sale
order that remained to be determined. (BL-1352
On February 8, 2016, the Custodian submitted to the Chancery Court a proposed plan of
sale (the "Sale Report"). In re TransPerfect Global, Inc., 2016 WL 3477217, at* 1 (Del. Ch. June
20, 2016). Elting did not object to the Sale Report, but the Shawes did. Id. at *2. Accordingly,
the parties fully briefed the issues and the Chancery Court held a hearing on April 27, 2016 to
consider the objections. Id. On June 20, 2016, the Chancery Court issued a letter opinion, as
revised on June 21, 2016 (the "Letter Opinion"), adopting in part and rejecting in part the Shawes'
objections, adopting the Custodian's proposed plan of sale with certain modifications, and
directing the Custodian to confer with the parties to submit a proposed form of Sale Order
consistent with the Letter Opinion. Id. at *3-5. On July 1, 2016, the Custodian submitted a
proposed form of Sale Order, to which the Shawes filed objections. (BL-1758; BL-1763; BL1764; BL-1766). On July 18, 2016, the Chancery Court overruled the Shawes' objections on the
grounds that they relitigated issues already decided and entered the Sale Order as proposed. (BL1765; BL-1766).
On July 28, 2016, the Shawes filed a motion seeking certification of an interlocutory appeal
of the Merits Opinion, the Custodian Order, the Letter Opinion, and the Sale Order, which the
Chancery Court granted. (BL-1773; BL-1774; BL-1863). On appeal, Ms. Shawe argued for the
first time that the forced sale of her share violated the Takings and Due Process Clauses of the
United States Constitution. Shawe v. Elting, 157 A.3d 152, 168 (Del. 2017). Under Delaware
Supreme Court Rule 8, the court "only considers questions fairly presented to the trial court." Id.
The rule provides a narrow exception if the Delaware Supreme Court finds that "the trial court
committed plain error requiring review in the interests of justice." Id. On February 13, 2017, the
majority opinion of the Delaware Supreme Court found no plain error. 4 Id. at* 169. Accordingly,
Ms. Shawe's constitutional arguments were deemed waived for failure to raise them first in the
Chancery Court. Id. Shortly thereafter, the Shawes filed a motion in the Chancery Court to amend
the Sale Order, which was denied. (BL-1998; BL-2000). A week later, on March 15, 2017, the
Shawes filed their complaint in this court claiming that the forced sale of their TransPerfect stock
violated the Takings and Due Process Clauses of the United States Constitution. (D.I. 1).
STANDARD OF REVIEW
A motion to dismiss pursuant to the Rooker-Feldman doctrine is a challenge to the court's
subject matter jurisdiction. Singleton v. Collins, 513 Fed. App'x 251, 252, (3d Cir. 2013). Where
the court lacks subject matter jurisdiction, it may dismiss the complaint pursuant to Fed. R. Civ.
P. 12(b)(l). Gary v. Braddock Cemetery, 517 F.3d 195, 203 (3d. Cir. 2008). Challenges to subject
matter jurisdiction may be facial or factual. Id. A facial attack contests the sufficiency of the
pleadings, whereas a factual attack contests the sufficiency of jurisdictional facts. Id. An attack
to subject matter jurisdiction based on the Rooker-Feldman doctrine is a factual attack. Nev. First
Fed., LLC v. Macciocca, 2015 WL 4461828, at *2 (E.D. Pa. July 21, 2015); McCurdy v. Esmonde,
2003 WL 223412, at *4 (E.D. Pa. Jan. 30, 2003). Thus, the court may weigh and consider evidence
outside the pleadings. Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000). In
One justice issued a dissenting opinion, but still "would not reach" the unconstitutional
takings argument. Shawe, 15 7 A. 3 d at 171.
addition, "no presumptive truthfulness attaches to plaintiffs allegations." Mortensen v. First Fed
Sav. & LoanAss'n, 549 F.2d 884, 891 (3d Cir. 1977).
The Rooker-Feldman doctrine bars federal district courts from hearing cases "that are
essentially appeals from state-court judgments."
Great W. Mining & Mineral Co. v. Fox
Rothschild LLP, 615 F.3d 159, 165 (3d Cir. 2010). The parties dispute whether the Third Circuit
has changed the test under Rooker-Feldman from "inextricably intertwined" to a four-part test set
forth in Great Western Mining & Mineral Co. v. Fox Rothschild LLP, 615 F .3d 159 (3d Cir. 2010).
(D.I. 22 at 15-16; D.I. 24 at 5). For the reasons explained below, the court finds that the Third
Circuit has not been consistent in instructing lower courts on which test to apply. Accordingly,
this court will apply both tests. Under either test, however, the result is the same: The court lacks
subject matter jurisdiction to hear Plaintiffs' claims. Finally, the court will address Plaintiffs'
argument that Rooker-Feldman does not apply to interlocutory orders.
The Appropriate Rooker-Feldman Test
In asserting the Rooker-Feldman doctrine, Defendants have relied on the inextricably
intertwined test. (D.I. 13 at 8-10; D.I. 15 at 7). Under that test, a claim is barred by RookerFeldman: (1) "if the federal claim was actually litigated in state court prior to the filing of the
federal action," or (2) "if the federal claim is inextricably intertwined with the state adjudication."
In re Knapper, 407 F.3d 573, 580 (3d Cir. 2005). State and federal claims are inextricably
intertwined when: (1) "in order to grant the federal plaintiff the relief sought, the federal court
must determine that the state court judgment was erroneously entered," or (2) "the federal court
must ... take action that would render the state court's judgment ineffectual." Jonas v. Gold, 627
Fed. App'x 134, 137 (3d Cir. 2015) (quoting ITT Corp. v. lntelnet Int'! Corp., 366 F.3d 205, 211
(3d Cir. 2004)). The current form of the Third Circuit's inextricably intertwined test appears to
have been established around the year 2000. See Parkview Associates Partnership v. City of
Lebanon, 225 F.3d 321, 325 (3d Cir. 2000).
In 2010, five years after the U.S. Supreme Court reversed the Third Circuit in Exxon Mobil
Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280 (2005), a Third Circuit panel decided Great
Western Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159 (3d Cir. 2010). In Exxon
Mobil, the Third Circuit relied on Rooker-Feldman to dismiss federal litigation proceeding in
parallel to state litigation. 544 U.S. at 284. The Great Western decision interpreted the reversal
in Exxon Mobil to mean that "caution is now appropriate in relying on our pre-Exxon formulation
of the Rooker-Feldman doctrine, which focused on whether the state and federal suits were
inextricably intertwined." 615 F.3d at 169. Accordingly, Great Western set forth a new four-part
test providing that Rooker-Feldman deprives the court of subject matter jurisdiction when: (1) the
federal plaintiff lost in state court; (2) the plaintiff complains of injuries caused by the state-c01.irt
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. Id. at 166.
From this court's perspective, the U.S. Supreme Court's reversal in Exxon Mobil should
not be read as a criticism of the inextricably intertwined test. Instead, the Third Circuit simply
misapprehended the temporal requirements of Rooker-Feldman in that one case. Exxon Mobil
had argued that Rooker-Feldman did not apply unless the state-court judgment was reached before
the federal suit was filed, which was not what happened. Exxon Mobil Corp. v. Saudi Basic Indus.
Corp., 364 F.3d 102, 105 (3d Cir. 2004). In other words, Exxon Mobil compared the timing of
the state-court judgment and the federal complaint. The Third Circuit rejected Exxon Mobil's
argument, stating that Rooker-Feldman only looked at whether the state-court judgment was
reached before a federal-court judgment on the same claims. Id. Thus, the Third Circuit had
focused on the timing of the judgments.
The Great Western test effectively remedies the infirmities in the inextricably intertwined
test by making clear that the correct temporal comparison is the state-court judgment and the
federal complaint. However, Great Western goes too far if it is to be read as a complete rejection
of the inextricably intertwined test. Both the inextricably intertwined test and the Great Western
test consider whether plaintiffs are essentially asking a federal court to find that an adverse statecourt ruling was reached in error. Compare Jonas, 627 Fed. App'x at 137 (stating that claims are
inextricably intertwined if "the federal court must determine that the state court judgment was
erroneously entered") and Great Western, 615 F.3d at 169 (stating that the fourth element is
satisfied if the federal court must "determine whether [a state court] reached its result in accordance
with the law"). Indeed, several Third Circuit decisions after Great Western have warned against
relying on the inextricably test while simultaneously affirming dismissals based on that very same
test. See, e.g., Bakshi v. Bergen Cnty. Super. Ct., 687 Fed. App'x 215, 218 n. 4 (3d Cir. 2017);
Haagensen v. Wherry, 610 Fed. App'x 210, 211 n. 5 (3d Cir. 2015); Reiter v. Wash. Mut. Bank,
455 Fed. App'x 188, 191n.4 (3d Cir. 2011). Those cases demonstrate that the legal underpinnings
of the inextricably intertwined test are still valid as long as the temporal component does not run
afoul of the problem in Exxon Mobil.
Ultimately, Great Western did not explicitly hold that the inextricably intertwined test was
no longer good law, perhaps recognizing that "no subsequent panel overrules the holding in a
precedential opinion of a previous panel." Reilly v. City of Harrisburg, 858 F.3d 173, 177 (3d Cir.
2017) (quoting Internal Operating Procedures of the Third Circuit Court of Appeals § 9 .1 ). Since
Great Western, Third Circuit decisions under Rooker-Feldman have covered the spectrum. As
indicated above, some panel decisions have cautioned against use of the inextricably intertwined
test while affirming district court decisions relying on the test. See, e.g., Bakshi, 687 Fed. App'x
at 218 n. 4.
Other panel decisions have reversed district court decisions for relying on the
inextricably intertwined test. See, e.g., Mazzetti v. Wood, 573 Fed. App'x 165, 167 (3d Cir. 2014).
Finally, several Third Circuit panel decisions after Great Western have employed the inextricably
intertwined test without questioning its validity. See, e.g., Jonas, 627 Fed. App'x at 137; Feingold
v. Office ofDisciplinary Counsel, 415 Fed. App'x 429, 431 (3d Cir. 2011); Easley v. New Century
Mortg. Corp., 394 Fed. App'x 946, 948 (3d Cir. 2010); Mayercheckv. Judges ofPa. Sup. Ct., 395
Fed. App'x 839, 842, (3d Cir. 2010); Van Tassel v. Lawrence Cnty. Domestic Relations Sections,
390 Fed. App'x 201, 203 (3d Cir. 2010). 5 To overrule a precedential panel decision, court en bane
consideration is required. Reilly, 858 F.3d at 177. Until the Third Circuit speaks with one voice,
the application of the inextricably intertwined test in precedential panel rulings still stands. As a
Great Western was not the first Third Circuit case to consider the Rooker-Feldman doctrine
after the U.S. Supreme Court issued Exxon Mobil in March 2005. As a result, there are also
numerous Third Circuit panel decisions before Great Western but after Exxon Mobil that relied on
the inextricably intertwined test without questioning its validity. See, e.g., Parks v. Twp. of
Portage, 385 Fed. App'x 118, 121 (3d Cir. 2010); Robinson v. Porges, 382 Fed. App'x 133, 135
(3d Cir. 2010); Diehl v. Connell, 382 Fed. App'x 127, 129 (3d Cir. 2010); Jones v. Unemployment
Comp. Bd. of Review, 381 Fed. App'x 187, 190 (3d Cir. 2010); Turner v. Children's Hosp. of
Phi/a., 378 Fed. App'x 124, 126 (3d Cir. 2010); Jacobowitz v. M & T Mortg. Corp., 372 Fed.
App'x 225, 227 (3d Cir. 2010); In re Madera, 586 F.3d 228, 232 (3d Cir. 2009); Koynok v. Lloyd,
328 Fed. App'x 133, 136 (3d Cir. 2009); Pondexter v. Allegheny Cnty. Housing Auth., 329 Fed.
App'x 347, 350 (3d Cir. 2009); Moncriefv. Chase Manhattan Mortg. Corp., 275 Fed. App'x 149,
152 (3d Cir. 2008); Twenty-Eight Thousand Four Dollars v. Pennsylvania, 274 Fed. App'x 122,
123 (3d Cir. 2008); Gary, 517 F.3d at 206; Ajjahnon v. New Jersey, 238 Fed. App'x 769, 770 (3d
Cir. 2007); Kore/is v. NJ Judicial Officials in Ct. Process Action, 201 Fed. App'x 870, 871 n. 1
(3d Cir. 2006); Taliaferro v. Darby Tp. Zoning Bd., 458 F.3d 181, 192 (3d Cir. 2006); Barnes v.
Domitrovich, 184 Fed. App'x 164, 166 (3d Cir. 2006); Kepoint Preservation Trust Org. ex rel.
Brown v. Fisher, 173 Fed. App'x 191, 194 (3d Cir. 2006); DeSantis v. Franklin, 160 Fed. App'x
237, 238 (3d Cir. 2005); and In re Knapper, 407 F.3d 573 (3d Cir. 2005).
result, this court will analyze Rooker-Feldman under both the inextricably intertwined test and the
Great Western test.
The Inextricably Intertwined Test
As stated above, the inextricably intertwined test bars a claim under Rooker-Feldman: (1)
"if the federal claim was actually litigated in state court prior to the filing of the federal action," or
(2) "if the federal claim is inextricably intertwined with the state adjudication." In re Knapper,
407 F.3d at 580. The test is worded in the disjunctive, allowing a claim to be dismissed under
either prong. The court finds that Plaintiffs' constitutional claims satisfy the first prong, because
they were "actually litigated" in the Delaware state courts before Plaintiffs filed the federal action.
The parties briefed and argued before the Delaware Supreme Court whether the forced sale of Ms.
Shawe's share "violate[ d] the Takings and Due Process Clauses of the United States and Delaware
Constitutions." Shawe, 157 A.3d at 168. Ultimately, the Delaware Supreme Court declined to
address the merits of Plaintiffs' constitutional claims, finding those claims had been waived. Id.
Nevertheless, this court is aware of no case holding that a claim is not actually litigated because it
was rejected on procedural, instead of substantive, grounds.
Even if the first prong of the inextricably intertwined test is not satisfied unless there is a
merits ruling, Plaintiffs' federal claims are still barred because they also meet the second prong.
Plaintiffs' federal claims are inextricably intertwined with the state adjudication, because they
essentially ask this court to enjoin the Chancery Court's implementation of its Sale Order.
Feingold, 415 Fed. App'x at 431 (finding federal claims inextricably intertwined with a state-court
proceeding where plaintiff seeks a federal district court injunction barring enforcement of a statecourt order); Van Tassel, 390 Fed. App'x at 203 (same). Although the complaint actually asks the
court to enjoin the Custodian and the Secretary from implementing the state-court orders, this is
equivalent to seeking an injunction against the state-court order itself. Plaintiffs cannot evade the
application of Rooker-Feldman through artful pleading. See, e.g., Johnson v. Draeger Safety
Diagnostics, Inc., 594 Fed. App'x 760, 764 (3d Cir. 2014) (finding that a federal product liability
claim was really a challenge to a state-court judgment and, therefore, barred by Rooker-Feldman).
Therefore, under the inextricably intertwined test, Rooker-Feldman bars Plaintiffs' complaint.
The Great Western Test
If Great Western replaced the inextricably intertwined test, then under Great Western the
Rooker-Feldman doctrine deprives the court of subject matter jurisdiction when: (1) the federal
plaintiff lost in state court; (2) the plaintiff complains 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. Singleton, 513 Fed. App'x·at
252-53. Here, all four prongs are satisfied.
First, Plaintiffs lost when the Chancery Court entered judgment against them on Elting's
petitions for a custodian and ordered the sale of TransPerfect over their objections. Further
confirming that Plaintiffs lost, those rulings were affirmed on appeal. Second, Plaintiffs complain
of injuries caused by state-court judgments, not injuries caused by Defendants' actions. This is
best exemplified by the allegations in the complaint that the state-court orders constituted the
unconstitutional taking that violated the Fifth Amendment. (See, e.g., D.I. 30
"Chancery identified no public use or public purpose for its Forced Sale that would be cognizable
under the Takings Clause" (emphasis added)); Id. at iii! 144, 146 (alleging that "[a] court-ordered
forcible transfer of one person's private property directly to another person constitutes a 'taking"'
and "does not constitute a public use or public purpose within the meaning of the Takings Clause
of the Fifth Amendment")). As the complaint alleges, the court-appointed Custodian is acting at
the direction of the court, and the Secretary has not yet taken any actions related to Plaintiffs. (Id.
14, 50). When defendants are acting under compulsion of a state-court order, that order and
not defendants are the source of the injury. Great Western, 615 F.3d at 167. Third, Plaintiffs'
federal suit was filed a few weeks after the Delaware Supreme Court affirmed the Chancery
Court's adverse rulings. Fourth, the bulk of the complaint quotes from various state-court rulings
and alleges that they were not reached in. accordance with the law, thereby requesting a direct
review and rejection of the state-court judgments.
Plaintiffs argue that they have raised an independent constitutional challenge that is not
barred by Rooker-Feldman. (D.I. 22 at 13-15). But the relief sought in the complaint is a
declaratory judgment that Section 226 "as construed by the Delaware courts" and "applied to the
Shawes" is unconstitutional. Courts have repeatedly found that a claim is not an independent
constitutional challenge when the daim seeks a declaratory judgment that a state court construed
and applied a state statute to the facts of the case in an unconstitutional manner. 6 See Exxon Mobil,
544 U.S. at 286 (stating that a "Rule could be contested in federal court ... so long as plaintiffs did
not seek review of the Rule's application in a particular case"); Durham v. Haslam, 528 Fed. App'x
559, 564 (6th Cir. 2013) ("Where the plaintiff alleges that a state court interpreted and applied a
state statute to her case in an unconstitutional manner, her complaint is an as-applied constitutional
challenge and is prohibited under the Rooker-Feldman doctrine."); Van Tassel v. Hodge, 565 Fed.
App'x 135, 139 (3d Cir. 2014) (holding that Rooker-Feldman barred a constitutional claim
In contrast, challenges to state-court judgments are independent where plaintiffs allege that
the judgment was procured through fraud, misrepresentation, or civil conspiracy. Robinson v. NJ
Mercer Cnty. Vicinage-Family Div., 514 Fed. App'x 146, 150 (3d Cir. 2013); Johnson, 594 Fed.
App'x at 764. Plaintiffs make no such allegations here.
attacking the state court's application of a statute to the facts of her case); Alvarez v. Attorney Gen.
for Fla., 679 F.3d 1257, 1264 (11th Cir. 2012) (holding that Rooker-Feldman barred a due process
claim alleging that the state comi erroneously applied and interpreted state statute); McKithen v.
Brown, 626 F.3d 143, 154 (2d Cir. 2010) (holding that Rooker-Feldman barred an as-applied due
process· claim alleging that a state court incorrectly and unconstitutionally interpreted a state
statute); Mikhail v. Kahn, 991 F. Supp. 2d 596, 618-19 (E.D. Pa. 2014) (explaining that as-applied
constitutional challenges to state-comi orders are barred by Rooker-Feldman but facial challenges
are not); Lazaridis v. Wehmer, 2008 WL 4758551, at *3 (D. Del. Oct. 28, 2008) (finding that
Rooker-Feldman barred as-applied constitutional challenges to lower court orders). Considering
the foregoing, the comi finds that Plaintiffs have not raised an independent claim. 7 Therefore,
Rooker-Feldman deprives this court of subject matter jurisdiction over their claims.
Plaintiffs argue that Rooker-Feldman is limited to "final judgments." (D.I. 22 at 11-13).
Several Third Circuit cases since Exxon Mobil, however, have held that district courts correctly
dismissed complaints under Rooker-Feldman even though state-court proceedings had not yet
come to an end before the federal action commenced. See, e.g., Mikhail v. Kahn, 572 Fed. App'x
68, 71 (3d Cir. 2014) (agreeing that the district court lacked subject matter jurisdiction under
Rooker-Feldman to the extent federal plaintiff sought declaratory reliefrelated to orders issued in
ongoing state-court divorce and custody proceedings); Coppedge v. Deutsche Bank Nat'l Trust,
Because Plaintiffs raised an as-applied constitutional challenge, the court finds
inapplicable Skinner v. Switzer, 562 U.S. 521 (2011), a case on which Plaintiffs relied. See Palmer
v. Dist. Att'y's Off ofAllegheny Cnty., 2017 WL 3481075, at *4 (W.D. Pa. Aug. 14, 2017) (finding
Skinner inapplicable where plaintiff alleged an "as applied" due process claim).
511 Fed. App'x 130, 132 (3d Cir. 2013) (stating that Rooker-Feldman prohibited the district court
from sitting in appellate review of a state-court proceeding, which was "currently ongoing"); Gray
v. Martinez, 465 Fed. App'x 86, 89 (3d Cir. 2012) ("While the state proceedings may have still
been ongoing when [plaintiff] commenced this federal civil suit ... we are satisfied that the default
judgment suffices for the purposes of Rooker-Feldman."); Mayercheck, 395 Fed. App'x at 842
(affirming dismissal under Rooker-Feldman where complaint challenged interlocutory orders
governing the distribution of assets in a divorce proceeding); see also Port Auth. Police Benev.
Ass'n, Inc. v. Port Auth. ofNY & NJ. Police Dept., 973 F.2d 169, 178 (3d Cir. 1992) (stating in
dicta that "the interlocutory nature of the ... state court's order does not preclude the application
of the Rooker-Feldman doctrine."). Notably, in Exxon Mobil itself, state-court litigation had not
come to end at the time the Third Circuit dismissed the claims under Rooker-Feldman. See Exxon
Mobil, 364 F.3d at 103 (stating that an appeal of the verdict was "currently pending in the Delaware
Supreme Court"). 8
In applying Rooker-Feldman, the critical inquiry should not be whether the state-court
proceedings have come to an end, but whether plaintiffs filed their federal action before or after
the adverse state-court rulings on which their claims are based. Here, Plaintiffs commenced their
federal suit after the adverse state-court rulings. Thus, the facts of this case are the opposite of
Exxon Mobil. Ultimately, it makes sense that "Rooker-Feldman ... applies to interlocutory orders
In light of these decisions, the court does not find persuasive the non-binding cases
Plaintiffs cited for the proposition that Rooker-Feldman does not apply to interlocutory orders.
(See D.I. 22 at 13 (citing Farah v. Lasalle Bank Nat'! Assoc., 2016 WL 1162644, at *8-9 (D.N.J.
Mar. 23, 2016) (declining to apply Rooker-Feldman because final judgment in a foreclosure action
was not entered before the federal action commenced); and Buoni v. Citibank NA., 2016 WL
6106465, at *2 (N.D.N.Y. Oct. 19, 2016) (same)).
issued by state courts," because "it cannot be the meaning of Rooker-Feldman that, while the
inferior federal courts are barred from reviewing final decisions of state courts, they are free to
review interlocutory orders." Brown & Root, Inc. v. Breckenridge, 211 F.3d 194, 199 (4th Cir.
2000). Considering all of the above, the court finds that Rooker-Feldman still bars this action even
though the state-comi proceedings have not yet come to an end.
For the foregoing reasons, Defendants' motions to dismiss (D.I. 11; D.I. 14; D.I. 31; D.I.
32) are granted. The complaint (D.I. 30) is dismissed with prejudice. An appropriate order will
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