Robinson v. Bridgeport Education Association et al

Filing 34

MEMORANDUM AND ORDER - The Unions' "Motion to Abstain or Stay Proceedings, or Modify Progression Order" (filing 20 ) is denied in part. The Unions' motion to modify the progression order is referred to the United States Magistrate Judge. Ordered by Judge John M. Gerrard. (Copy e-mailed to pro se party) (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
PATRICK ROBINSON,
Plaintiff,

8:16-CV-402

vs.
MEMORANDUM AND ORDER
BRIDGEPORT EDUCATION
ASSOCIATION and NEBRASKA
STATE EDUCATION
ASSOCIATION,
Defendants.
This matter is before the Court on the "Motion to Abstain or Stay
Proceedings, or Modify Progression Order" (filing 20) filed by the defendants,
the Bridgeport Education Association (BEA) and the Nebraska State
Education Association (NSEA) (collectively, the Unions). The Unions' motion
will be denied with respect to abstaining from exercising jurisdiction or
staying the case, and the request to modify the progression order will be
referred to the United States Magistrate Judge.
BACKGROUND
The plaintiff, Patrick Robinson, was an employee of the Bridgeport
Public Schools (BPS). Filing 1 at 2. He was also a member of the Unions.
Filing 1 at 2. But after some personal and work-related conflicts with other
BPS employees, Robinson was suspended by the superintendent of the BPS.
Filing 1 at 8. The Bridgeport Board of Education held a hearing and decided
to cancel Robinson's employment. Filing 22-2.

Robinson filed a petition in error in the District Court for Morrill
County, Nebraska, in which he appealed from the Board's decision to cancel
his employment. Filing 22-3. He filed a separate complaint in Morrill County
District Court against BPS and the Board, alleging violations of the
Nebraska Open Meetings Act, Neb. Rev. Stat. § 84-1407 et seq. Filing 22-7 at
1-6. He also filed a charge of discrimination against the BEA with the
Nebraska

Equal

Opportunity

Commission

(NEOC)

and

U.S.

Equal

Opportunity Commission (EEOC). Filing 1 at 15. And, after the EEOC issued
a right-to-sue letter, he filed suit in federal court in separate cases against
the Board and the Unions. Filing 1; see case no. 8:16-cv-177.
In this case, against the Unions, Robinson generally alleges that the
Unions conspired with the Board to have his employment canceled. Filing 1.
He alleges that the Union's representatives acted to retaliate against him for
his NEOC charge, in violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq., resulting in his suspension and then the cancellation of
his employment. Filing 1 at 9-10. He also alleges that the Unions colluded to
hold a members-only meeting from which only Robinson and one other union
member were excluded, and that the events of that meeting and some
subsequent emails tortiously interfered with Robinson's employment
relationship with BPS. Filing 1 at 10-11. And, he alleges that the Unions
negligently breached their duty to represent him when they denied him union
representation, resulting in the loss of his job and "emotional distress and
humiliation." Filing 1 at 12.
Meanwhile, back in state court, on January 5, 2017, the Morrill County
District Court issued its Ruling on Appeal with respect to Robinson's petition
in error, affirming the Board's decision to cancel Robinson's employment.

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Filing 22-4. The court rejected Robinson's claim that his due process rights
had been violated, and found that
Robinson's conduct was clearly insubordinate and unprofessional.
He created an adversarial environment in which he was difficult
to supervise, and in which he refused to follow directions of his
supervisors who had clear authority to direct him. He refused to
meet with his supervisors without union representation — which
may not be a contract violation in itself, but demonstrates an
insubordinate attitude. His strong suspicion of other teachers
being unsupportive of him, and his refusal to make himself
available to teachers in their classrooms affected his ability to
competently perform his duties as a curriculum director.
Filing 22-4. So, the court found "no error in any of the board's findings or
decisions" and "no merit in any of the thirty-two noted errors" in Robinson's
petition in error. Filing 22-4 at 2. Robinson appealed to the Nebraska Court
of Appeals. Filing 22-5. That appeal is still pending.
DISCUSSION
The Unions move the Court to abstain from exercising subject-matter
jurisdiction (essentially, to dismiss the case) based on the Rooker-Feldman
doctrine. See, D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker
v. Fid. Tr. Co., 263 U.S. 413 (1923). Alternatively, they ask the Court to stay
the case based on the Colorado River doctrine. See Colorado River Water
Conservation Dist. v. United States, 424 U.S. 800 (1976); see also Moses H.
Cone Mem'l Hosp. v. Mercury Const. Corp., 460 U.S. 1 (1983). Finally, they
ask the Court to extend the case progression schedule.
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ROOKER-FELDMAN DOCTRINE
Rooker-Feldman holds that federal district courts lack subject-matter
jurisdiction over "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." Shelby Cty. Health Care Corp. v. S. Farm Bureau Cas. Ins.
Co., 855 F.3d 836, 840 (8th Cir. 2017). The Unions contend that the Morrill
County District Court's ruling in Robinson's appeal from the cancellation of
his employment is such a state-court judgment.
Robinson is a state court loser, and his alleged damages are at least
arguably the result of a state-court judgment. See Dodson v. Univ. of Ark. for
Med. Scis., 601 F.3d 750, 754-55 (8th Cir. 2010). But there is a problem with
the Unions' argument: the Eighth Circuit has held that a state proceeding is
not complete for Rooker-Feldman purposes until the appellate process is
complete. See Dornheim v. Sholes, 430 F.3d 919, 923-24 (8th Cir. 2005); see
also Stebbins v. Harp & Assocs., LLC, 586 F. App'x 682 (8th Cir. 2013).
Plainly, this case was commenced before the state-court proceedings were
complete, because the state-court proceedings are still not complete: this case
was, in fact, filed before the state court even ruled on Robinson's petition in
error. So, "any effect that the state court rulings might have on this federal
action is limited to the application of preclusion law," and the Court has not
been divested of jurisdiction. See Dornheim, 430 F.3d at 924.
COLORADO RIVER ABSTENTION
The Colorado River doctrine "permits federal courts to decline to
exercise jurisdiction over cases where parallel state court litigation is
pending, meaning that there is a substantial likelihood that the state
proceeding will fully dispose of the claims presented in the federal court."
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Spectra Commc'ns Grp., LLC v. City of Cameron, Mo., 806 F.3d 1113, 1121
(8th Cir. 2015).
This

rule

is

based

on

considerations

of

wise

judicial

administration, giving regard to conservation of judicial resources
and comprehensive disposition of litigation. Nevertheless, federal
courts have a virtually unflagging obligation to exercise the
jurisdiction given them, which does not evaporate simply because
there is a pending state court action involving the same subject
matter. Rather, Colorado River abstention is appropriate only in
exceptional circumstances where the surrender of federal
jurisdiction is supported by the clearest of justifications.
Id. (citations and quotations omitted).
But "as a necessary premise of Colorado River abstention, 'there must
be pending parallel state and federal court proceedings before Colorado River
is implicated.'" United States v. Rice, 605 F.3d 473, 476 (8th Cir. 2010)
(quoting Fru–Con Const. Corp. v. Controlled Air, Inc., 574 F.3d 527, 534 (8th
Cir. 2009)). And "[w]hile the prevailing view is that state and federal
proceedings are parallel for purposes of Colorado River abstention when
substantially similar parties are litigating substantially similar issues
in both state and federal court," the Eighth Circuit requires more precision.
Id. "A substantial similarity must exist between the state and federal
proceedings, which similarity occurs when there is a substantial likelihood
that the state proceeding will fully dispose of the claims presented in the
federal court." Id. Determining whether parallel proceedings exist involves
comparing the sources of law, required evidentiary showings, measures of
damages, and treatment on appeal for each claim. Cottrell v. Duke, 737 F.3d
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1238, 1245 (8th Cir. 2013). And "[w]hen any doubt exists as to the parallel
nature of concurrent state and federal proceedings, the district court cannot
utilize Colorado River to refuse its jurisdiction." Id.
In this case, the state and federal proceedings do not have substantially
similar parties. The Unions are not parties to the pending state-court
proceedings. See Scottsdale Ins. Co. v. Detco Indus., Inc., 426 F.3d 994, 997
(8th Cir. 2005). And while the issues in each proceeding may be related, that
"does not compel a conclusion that the suits are parallel": there are issues
potentially implicated in the state-court proceedings that are not implicated
here, and there are issues here relating to the Unions' allegedly wrongful
conduct that are not implicated in state court. See id.; see also Cottrell, 737
F.3d at 1245. There are, in other words, doubts about the parallel nature of
the concurrent proceedings—and, that being the case, the Court cannot
refuse its jurisdiction. Cottrell, 737 F.3d at 1245.
Furthermore,

even

if

parallel

proceedings

were

pending,

the

exceptional circumstances warranting abstention are lacking. The Court
examines six factors to determine whether such exceptional circumstances
are present:
(1) whether there is a res over which one court has established
jurisdiction, (2) the inconvenience of the federal forum, (3)
whether maintaining separate actions may result in piecemeal
litigation, unless the relevant law would require piecemeal
litigation and the federal court issue is easily severed, (4) which
case has priority—not necessarily which case was filed first but a
greater emphasis on the relative progress made in the cases, (5)
whether state or federal law controls, especially favoring the
exercise of jurisdiction where federal law controls, and (6) the
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adequacy of the state forum to protect the federal plaintiff's
rights.
Spectra, 806 F.3d at 1121 (quotations omitted). Those factors are not applied
as a mechanical checklist, but rather are weighed "in a pragmatic, flexible
manner with a view to the realities of the case at hand." Id. (quotations and
citations omitted).
"The first two factors are irrelevant in this case because there is no res
at issue, and the state and federal fora are equally convenient." Id. The third
factor, the risk of piecemeal litigation, is a concern, but it is attenuated
because the state and federal proceedings have different defendants and,
therefore, severable claims. Compare id. at 1121-22. The fourth factor does
not particularly weigh in one direction or the other—while the state-court
proceeding is farther along, there are issues in this case that have not been
raised in state court, and therefore have not progressed at all. Both state and
federal law are implicated because Robinson's federal Title VII claim is
accompanied by two pendant state-law tort claims. And finally, while the
state court is fully capable of protecting Robinson's rights, he has presented
claims here against different defendants. On balance, "after taking into
account both the obligation to exercise jurisdiction and the combination of
factors counselling against that exercise," id. at 1122, the Court concludes
that extraordinary circumstances warranting abstention are not present.1
1

None of the foregoing analysis should be read as suggesting that issue preclusion, should

it be raised and proved, could not be dispositive of Robinson's claims. See generally Hara v.
Reichert, 843 N.W.2d 812, 816 (Neb. 2014); see also, Butler v. City of N. Little Rock, Ark.,
980 F.2d 501, 506 (8th Cir. 1992); Swapshire v. Baer, 865 F.2d 948, 950-51 (8th Cir. 1989);
Brown v. St. Louis Police Dep't of City of St. Louis, 691 F.2d 393, 396 (8th Cir. 1982). A
Nebraska district court's ruling on a petition in error may be a final judgment for purposes

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MODIFICATION OF PROGRESSION ORDER
Finally, the Unions seek to modify the progression order, specifically by
extending the deposition deadline from July 25 to September 25. See filing 21
at 9-10. But that would also require extending the dispositive motion
deadline, see filing 19, and perhaps the pretrial conference and trial as well.
And those are matters generally entrusted to the Magistrate Judge. See
NECivR 16.1. Accordingly, the Court will refer the Unions' request to modify
the progression order to Judge Nelson.
IT IS ORDERED:
1.

The Unions' "Motion to Abstain or Stay Proceedings, or
Modify Progression Order" (filing 20) is denied in part.

2.

The Unions' motion to modify the progression order is
referred to the United States Magistrate Judge.

Dated this 11th day of July, 2017.
BY THE COURT:

John M. Gerrard
United States District Judge
of issue preclusion. Kirkland v. Abramson, 538 N.W.2d 752, 755 (Neb. 1995); see Indep. Sch.
Dist. No. 283 v. S.D. by J.D., 88 F.3d 556, 562 (8th Cir. 1996). And the finality requirements
for issue preclusion under Nebraska law are different from those of the Rooker-Feldman
doctrine. See Peterson v. Neb. Natural Gas Co., 281 N.W.2d 525, 527-28 (Neb. 1979) (citing
Kometscher v. Wade, 128 N.W.2d 781, 784-87 (Neb. 1964)).

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