Lee v. George

Filing 27

MEMORANDUM OPINION by Judge Charles R. Simpson, III on 5/17/12. Pltf Lee's motions for a default judgment and to strike Judge George's motion to dismiss will be denied. The Dft, Judge George's motion to dismiss will be granted and this action will be stricken from the ct's active docket. The remainder of Dft Lee's motion will be denied as moot.cc:counsel, pro se plaintiff (SJS) Modified on 5/18/2012 added cc to pro se plaintiff (TLB).

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE

JOHN DAVID LEE

PLAINTIFF

v.

CIVIL ACTION NO. 3:11-CV-00607

STEPHEN M. GEORGE, Justice of
Circuit Court, Family Division Nine (9),
Jefferson County, Kentucky

DEFENDANT

MEMORANDUM OPINION

This matter is before the court on the following seven motions: (1) a motion by defendant
Judge Stephen M. George to dismiss the complaint (DN 4); (2) a motion by plaintiff John David Lee
to strike Judge George’s motion to dismiss (DN 7); (3) a motion by Lee to enter a default judgment
in his favor (DN 6); (4) a motion by Lee for emergency injunctive relief (DN 13); (5) a motion by
Lee for additional review for declaratory relief and injunctive relief (DN 17); (6) a motion by Lee
to issue a subpoena duces tecum for the medical records of himself and his minor children (DN 8);
and (7) a motion by Lee for leave to file documents electronically (DN 12). Responses have been
filed for some of those motions, and for the others the time to file responses has passed. Thus, those
seven motions are now ripe for this court’s review. For the reasons stated herein, Judge George’s
motion to dismiss the complaint will be granted and all of Lee’s motions will be denied.
BACKGROUND
On October 31, 2011, Lee filed a complaint in this court against Judge George, a judge of
the Family Division of the Jefferson County, Kentucky, Circuit Court. Lee takes issue with
various orders issued by Judge George, who has been presiding over divorce and child custody

proceedings between Lee and his ex-wife, Jill Stanley. Specifically, Lee argues that: (1) an
October 5, 2011, order stating that he shall not interfere with Stanley’s business or professional
relationships violated his First Amendment rights; (2) a November 29, 2010, order prohibiting
Lee from filing any complaint or action on behalf of himself or his children violated his 14th
Amendment rights; (3) a May 20, 2011, order for Lee to dismiss a complaint he filed on behalf
of himself and his children for medical malpractice, negligence, and fraud violated his 14th
Amendment rights; (4) a June 8, 2011, order sentencing Lee to thirty days in jail for contempt for
failing to comply with the May 20 order to dismiss the complaint violated his Fourth
Amendment rights; (5) an April 29, 2010, order prohibiting Lee from obtaining records from any
court-appointed expert without a valid order form a court violated his 14th Amendment rights;
(6) a July 20, 2010, order stating that the court had reviewed medical records from Lee’s
children’s former therapist that Lee had subpoenaed, had found the records to be irrelevant, and
had shredded the records violated Lee’s 14th Amendment rights; and (7) two orders, dated
January 26, 2010, and October 11, 2010, awarding Stanley attorney’s fees violated the terms of
an automatic stay of execution entered in Lee’s bankruptcy proceeding. Lee seeks declaratory
relief that Judge George violated the First, Fifth, and Fourteenth Amendments of the
Constititution and the automatic stay of execution entered in Lee’s bankruptcy proceeding. He
further seeks a permanent injunction prohibiting enforcement of Judge George’s orders and
disqualifying Judge George from further involvement in any matter involving Lee.
On November 23, 2011, Judge George moved to dismiss Lee’s complaint. Judge George
asserted that he was entitled to sovereign immunity under the Eleventh Amendment, that the

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Rooker-Feldman doctrine barred Lee’s claims, and that Lee had failed to state a claim or show
that a justiciable controversy exists.
Lee filed a motion to strike Judge George’s motion to dismiss and a motion to enter
default judgment in Lee’s favor. Those motions were both premised on Lee’s assertion that he
properly served summons on Judge George on October 31, 2011, making Judge George’s
November 23, 2011 motion to dismiss untimely.
Lee thereafter filed a motion for emergency injunctive relief to disqualify Judge George
from any matter involving Lee. Lee argued that the emergency injunctive relief was warranted
because Judge George violated his 4th and 14th Amendment rights by issuing a December 15,
2011, order finding that Lee was in contempt of court without holding an appropriate hearing.
Lee also complained that the same order allegedly reduced his visitation time with his children.
On February 21, 2012, Lee filed a motion for additional review for declaratory relief and
injunctive relief, seeking, in essence, to add allegations and claims to his original complaint. In
his motion, Lee alleged that he had filed a motion with the Kentucky Supreme Court to
disqualify Judge George, but Judge George had nevertheless continued to hear, and rule on, a
motion by Stanley to extend an order of protection against Lee for three additional years.
According to Lee, that was improper because Judge George lost jurisdiction by virtue of the
motion to disqualify. Lee also claimed that Judge George extended the order of protection in
retaliation for Lee filing this action against Judge George and other legal actions against various
parties in the divorce case. Lee sought a declaratory judgment that Judge George, in hearing and
granting the motion for an extension of the order of protection, had violated Lee’s 14th

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Amendment rights. Lee also sought a permanent injunction prohibiting enforcement of the order
extending the order of protection.
Finally, Lee has filed two more motions that remain pending: a motion to issue a
subpoena for the medical records of himself and his minor children, and a motion for leave to
file documents electronically.
LEE’S MOTION TO STRIKE AND MOTION FOR DEFAULT JUDGMENT
First, we will turn to Lee’s contention that Judge George’s motion to dismiss should be
stricken and a default judgment should be entered in Lee’s favor because Judge George did not
file a motion to dismiss or an answer to Lee’s complaint within 21 days after being served with
the complaint. Lee asserts that he filed his complaint with the clerk of this court on October 31,
2011, and that he served Judge George that same day by depositing a copy of the complaint with
the Jefferson County Circuit Clerk, Family Division. Judge George filed his motion to dismiss
on November 23, 2011, 23 days after Lee claims he served Judge George. In response, Judge
George argues that he was never properly served, and thus his motion to dismiss was not
untimely.
Lee’s motions to strike and for default judgment will be denied, as he has not shown that
he has properly effected service. It is the plaintiff’s burden to perfect service of process and to
show that proper service was made. See Sawyer v. Lexington-Fayette Urban County Gov’t, 18 F.
App’x 285, 287 (6th Cir. 2001) (citing Byrd v. Stone, 94 F.3d 217, 219 (6th Cir. 1996)). Under
Rule 4(e) of the Federal Rules of Civil Procedure, service of process upon an individual may be
made by:

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(1) following state law for serving a summons in an action brought in courts of
general jurisdiction in the state where the district court is located or where service
is made; or
(2) doing any of the following:
(A) delivering a copy of the summons and of the complaint to the individual
personally;
(B) leaving a copy of each at the individual’s dwelling or usual place of abode
with someone of suitable age and discretion who resides there; or
(C) delivering a copy of each to an agent authorized by appointment or by law
to receive service of process.
Kentucky service rules provide for service upon an individual by delivering a copy of the
summons and complaint to the individual personally, or else by delivering a copy of each to “an
agent authorized by appointment or by law to receive service of process for such individual.”
KY. R. CIV. P. 4.04(2).
Neither party suggests that Lee attempted service either personally or by leaving a copy
at Judge George’s dwelling or usual place of abode. Rather, Lee asserts that he has accomplished
service by delivering a copy of the complaint to an agent authorized by appointment or by law to
receive service of process for Judge George, namely, the clerk of the Jefferson County Circuit
Court, Family Division.
However, Lee has provided no reason to believe that Judge George ever appointed the
clerk to accept service of process on Judge George’s behalf. Moreover, Judge George’s response
states that he has never authorized any individual to accept service on his behalf. Thus, Lee has
not met his burden of showing that he properly made service to an individual authorized by
appointment to receive service of process.

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Nor has Lee shown that the clerk was authorized by law to receive service of process for
the judge. Lee points to no law suggesting that a clerk of court is authorized to receive service of
process for judges, whether the judges are sued in their individual or official capacities, and this
court has found no such law.
In addition, Lee’s attempt to serve process upon Judge George suffers from one other
deficiency. Lee’s papers make clear that he was the one who attempted to serve the summons
and complaint. However, Rule 4(c)(2) of the Federal Rules of Civil Procedure requires that
service be effected by a person who is not a party in the action. Since Lee is a party to the action,
his attempt to serve process upon Judge George renders the service improper. See Speelman v.
United States, 461 F. Supp. 2d 71, 74 (D.D.C. 2006) (service insufficient where plaintiff served
complaint).
In short, it is apparent that Lee did not properly serve Judge George with the summons
and complaint. Lee argues that Judge George never stated in his response papers that he did not
receive the documents on October 31, 2011, and thus, the method by which he was served is
immaterial. However, that is not the law. Due process requires proper service of process in order
to obtain in personam jurisdiction over a defendant. See O.J. Distrib., Inc. v. Hornell Brewing
Co., Inc., 340 F.3d 345, 353 (6th Cir. 2003). Thus, the fact that the complaint ultimately ended
up in Judge George’s hands, perhaps even on October 31, 2011, is of no importance. All that
matters for the purpose of resolving Lee’s motions to strike and for default judgment is that Lee
has not shown that he properly served Judge George.
JUDGE GEORGE’S MOTION TO DISMISS

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Judge George contends that Lee’s complaint should be dismissed for the following
reasons: (1) the Eleventh Amendment bars Lee’s suit against Judge George; (2) Judge George, in
his official capacity, is not a “person” under 42 U.S.C. § 1983; (3) this court lacks subject matter
jurisdiction under the Rooker-Feldman doctrine; and (4) Lee’s complaint does not set forth a
justiciable controversy.
Judge George is correct that this court must dismiss Lee’s complaint. Under the RookerFeldman doctrine, federal district courts are precluded from adjudicating “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, 284 (2005). The
doctrine is premised on the fact that “appellate jurisdiction to reverse or modify a state-court
judgment is lodged . . . exclusively in [the Supreme] Court.” Id. at 283. The Rooker-Feldman
doctrine applies in the following two types of cases originating in state-court:
(1) cases where appellate remedies have been exhausted in state court and issues
raised and decided in the state courts are presented to the federal district courts
for reconsideration; and (2) cases where the federal claims asserted turn so
directly on state court judgments that the federal district courts must review the
state court judgments to resolve the federal claims.
Johnson v. Ohio Supreme Court, 156 F. App’x 779, 782 (6th Cir. 2005).
Here, the basis for Lee’s claims are that various of Judge George’s orders violated Lee’s
constitutional rights or orders of the bankruptcy court. To review those claims, this court would
have no choice but to examine the propriety of the underlying orders. In other words, Lee is
seeking, in effect, to overturn Judge George’s orders by having them declared unlawful. Thus,
Lee’s claims fall under the second category of cases in which the Rooker-Feldman doctrine

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applies, i.e., “cases where the federal claims asserted turn so directly on state court judgments
that the federal district courts must review the state court judgments to resolve the federal
claims.” Johnson, 156 F. App’x at 782.
But that does not end the inquiry into whether the Rooker-Feldman doctrine bars this
court from exercising subject-matter jurisdiction over Lee’s claims. The Rooker-Feldman
doctrine is focused on challenges to “final state-court judgments.” Lance v. Dennis, 546 U.S.
459, 463 (2006). Further, in Exxon Mobil Corp., 544 U.S. at 284, the Supreme Court emphasized
the “narrow ground occupied” by the Rooker-Feldman doctrine. In doing so, the Supreme Court
made clear that the doctrine “is ‘confined to cases’ like Rooker and Feldman themselves, where
the plaintiffs ‘filed suit in federal court after the state proceedings ended.’” Shafizadeh v.
Bowles, 2012 WL 1139005, at *1 (6th Cir. Apr. 6, 2012) (quoting Exxon Mobil Corp., 544 U.S.
at 284, 291).
The meaning of the phrases “final state-court judgments” and “after the state proceedings
ended” are, as yet, unclear. For instance, it is not clear after the Supreme Court’s decision in
Exxon-Mobil if a challenge to an interlocutory order deemed final and appealable by the state
trial court would be precluded by the Rooker-Feldman doctrine. But see Vizgrand v. Supervalue
Holding, Inc., 2007 WL 2413102, at *3 (E.D.Mich. Aug. 21, 2007) (holding that the doctrine
applies equally to interlocutory and final state court judgments, but citing a pre-Exxon-Mobil
case for that proposition). In fact, as the Sixth Circuit recently noted, it is still an open question
whether Rooker-Feldman applies where a plaintiff files suit while a state appeal remains
pending. Shafizadeh, 2012 WL 1139005, at *1.

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Compounding the lack of clarity in the law is the fact that, on the existing record before
the court, the procedural postures of the various proceedings in state court about which Lee
complains are unclear. What can be definitively stated is that there are at least two separate cases
involving Lee that were pending before Judge George, one under docket number 08CI504095
and the other under 08D503650-002 (see DN 17 Exhs. A & B). It appears that proceedings of
some sort are continuing in both of those cases, as Lee attached to his motion for additional
review for declaratory relief and injunctive relief two orders of Judge George–one under each
docket number–issued in February of 2012, months after Lee initially filed his complaint in this
court (DN 17).
Additionally, it is apparent that many, though not all, of the orders that Lee complains
about were deemed to be final and appealable orders by Judge George. Specifically, the October
5, 2011, order that Lee should not interfere with Stanley’s business or professional relationships
states that it is a final and appealable order. So, too, both orders awarding Stanley attorney fees
state that they are final and appealable. Additionally, the June 8, 2011, order sentencing Lee to
thirty days’ jail for contempt states that it is a final and appealable order. Likewise, the February
17, 2012, order, which extended the order of protection against Lee and which Lee complained
about in his motion for additional review for declaratory relief and injunctive relief, is a final and
appealable order. However, it is unclear whether Lee took any appeals from those orders and, if
so, what the statuses of any such appeals are. Moreover, the remaining orders about which Lee
complains either do not state that they are final and appealable, or else the final page of the order
was not provided.

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But this court need not resolve the legal or factual issues in this particular case. That is
because Lee’s complaint must be dismissed pursuant to the Younger abstention doctrine.
“Younger abstention requires a federal court to abstain from granting injunctive or declaratory
relief that would interfere with pending state judicial proceedings.” O’Neill v. Coughlan, 511
F.3d 638, 643 (6th Cir. 2008); see Sun Ref. & Mktg. Co. v. Brennan, 921 F.2d 635, 639-640 (6th
Cir. 1990); see also J.P. v. DeSanti, 653 F.2d 1080, 1084 (6th Cir. 1981) (concluding that “even
minimal interference with . . . a state proceeding” requires abstention). Abstention in civil cases
is appropriate where the pending state case involves “important state interests” and the state
proceeding affords the plaintiff an adequate opportunity to raise constitutional claims. Middlesex
County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982).
Here, there is little doubt that Lee’s suit seeks to interfere with the state proceedings in
the two cases to which Lee is a party that are pending in Judge George’s court. He is seeking
declaratory judgments that certain of Judge George’s orders are unlawful and he seeks a
permanent injunction prohibiting enforcement of the orders and barring Judge George from
further involvement in the cases to which Lee is a party. See Shahfizadeh, 2012 WL 1139005, at
*2 (state litigant’s federal suit would grossly interfere with state divorce case where litigant
sought an injunction directing judge who presided over the divorce to remove himself from the
case). Additionally, the state proceedings involve important state interests. Child custody and
divorce issues are clearly important state interests. See, e.g., Kelm v. Hyatt, 44 F.3d 415, 420 (6th
Cir. 1995) (explaining that domestic relations issues are important state interests); see also
Shafizadeh, 2012 WL 1139005, at *2 (holding that divorce, the proper division of marital
property, and enforcement of a divorce court’s orders are important state interests). Likewise,

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there is little doubt that Judge George’s orders concerning his finding that Lee was in contempt
implicate important state interests. See Judice v. Vail, 430 U.S. 327, 335 (1977); see also
Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 13 (1987) (noting that states have an interest in
enforcing the orders and judgments of their courts). Finally, it is beyond dispute that the state
courts afford Lee an adequate opportunity to raise grievances concerning Judge George and his
orders. See Shafizadeh, 2012 WL 1139005, at *2 (appellate process in Kentucky courts provided
adequate opportunity for plaintiff to raise his claims concerning the defendant state court judge).
Because Lee’s suit in this court would interfere with ongoing state proceedings that
involve important state interests and that provide him an opportunity to raise his federal claims,
Younger abstention applies and Lee’s complaint will be dismissed.
CONCLUSION
Lee’s motions for a default judgment and to strike Judge George’s motion to dismiss will
be denied. Judge George’s motion to dismiss will be granted and this action will be stricken from
this court’s active docket. The remainder of Lee’s motions will be denied as moot.

May 17, 2012

cc:

Plaintiff, pro se
Counsel of Record

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