SILVER et al v. COURT OF COMMON PLEAS OF ALLEGHENY COUNTY et al
Filing
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MEMORANDUM OPINION indicating that, for reasons more fully stated within, Plaintiffs' motions for leave to amend 32 and for a preliminary injunction 33 are denied and their Complaint 1 is dismissed, with prejudice. An appropriate Order follows. Signed by Judge Nora Barry Fischer on 12/12/18. (jg)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
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SUSAN SILVER, MD, RICHARD
DUCOTE, ESQ.,
Plaintiffs,
vs.
COURT OF COMMON PLEAS OF
ALLEGHENY COUNTY, AND; AND THE
HONORABLE KIM BERKELEY CLARK,
IN HER OFFICIAL CAPACITY;
Defendants,
Civ. A. No. 18-494
Judge Nora Barry Fischer
MEMORANDUM OPINION
I.
INTRODUCTION
This matter is related to an ongoing state custody case between Plaintiff Susan Silver
(“Silver”) and her ex-husband, Sammy Bertenthal, (“Bertenthal”) and a motion for sanctions that
Bertenthal filed against Silver and her counsel, Richard Ducote, Esq., which was granted, in part,
by the Honorable Kim Berkley Clark, (“Judge Clark”), of the Court of Common Pleas of
Allegheny County, (“Court of Common Pleas”), (collectively, “Defendants”). (See Docket No.
34). Prior to Judge Clark ruling on the matter, Plaintiffs sued her and the Court of Common Pleas
in federal court alleging violations of their rights to freedom of speech under the First and
Fourteenth Amendment and seeking declaratory and injunctive relief. (Docket No. 1). This action
was initially assigned to now-Chief Judge Mark R. Hornak,1 who conducted a hearing and oral
argument on April 18, 2018, at which time an order was entered denying Plaintiffs’ previously
filed motions seeking a temporary restraining order and/or preliminary injunction, without
1
Judge Hornak became Chief Judge of the U.S. District Court for the Western District of Pennsylvania on
December 7, 2018. For consistency, the Court refers to him as Chief Judge Hornak throughout this Opinion.
1
prejudice, for reasons he fully described on the record, including that the Court would abstain from
exercising jurisdiction over the matter under the doctrine of Younger v. Harris, 401 U.S. 37 (1971),
and that the Eleventh Amendment barred the claim. (Docket Nos. 15; 22). Presently before the
Court are Plaintiffs’ third motion to amend and supplement their complaint, a corresponding third
motion for preliminary injunction and Defendants’ opposition thereto wherein they lodge
numerous defenses to the motions and the lawsuit. (Docket Nos. 32-34; 36-37; 39-40; 42-43).
These matters have been fully briefed and the Court deems it appropriate to adjudicate such
motions without conducting a hearing or oral argument. Fed. R. Civ. P. 78(b) (“By rule or order,
the court may provide for submitting and determining motions on briefs, without oral hearings.”).
After careful consideration of the parties’ positions and for the following reasons, Plaintiffs’
motions [32] [33] are denied and their Complaint [1] is dismissed, with prejudice.
II.
RELEVANT BACKGROUND
Silver and Bertenthal have been engaged in contentious divorce and custody proceedings
in the Court of Common Pleas since at least 2015 that have involved multiple appeals. (See
generally, Bertenthal v. Silver, FD-15-008183 (C.P. Allghy 2015); Docket Nos. 1; 32-2). The
custody dispute was largely resolved in favor of Bertenthal and affirmed on appeal. (Id.). In
February of this year, while one of the appeals was pending before the Supreme Court of
Pennsylvania, Ducote issued a press release and then conducted a press conference (in which Silver
participated) and at which time he disseminated certain facts pertaining to the custody battle
favoring Silver’s position and criticized rulings by the state court awarding custody to Bertenthal.
(Docket No. 1 at ¶ 12, n.1). These communications led to the publication of articles in the
Pittsburgh City Paper on February 28, 2018 in both its print and online editions. (Id. at ¶ 13).
Ducote also posted the press conference on youtube.com and the press release and various
2
attachments to dropbox.com. (Id. at n.2; 32-2 at Pl. Ex. H). Ducote further joined an online
discussion in the comments section to the City Paper’s online article. (Id. at n.3; Pl. Ex. B).
Bertenthal’s state counsel, Elizabeth Pride, Esquire, prepared a motion alleging that Silver
and Ducote should be sanctioned for allegedly violating Rule 8.4(d) of the Pennsylvania Rules of
Professional Conduct and 42 Pa.C.S. § 2503 for engaging in conduct which was “patently and
outrageously arbitrary, vexatious and obdurate.” (Id. at ¶ 14, n.6; Pl. Ex. D). Among other things,
Bertenthal cited the litigation history of the case; outlined admonitions issued to Ducote by other
courts; pointed to the extrajudicial communications by Ducote and Silver in February of 2018; and
argued that such communications were defamatory, contained misrepresentations, and violated the
privacy of the child. (Pl. Ex. D). Bertenthal sought financial sanctions, an order directing Silver
and Ducote to remove information they had posted on the Internet about the case and an order
restraining Silver and Ducote from making further extrajudicial communications regarding the
case. (Id.). Pride emailed her motion to Judge Clark, copying Ducote, on March 22, 2018, advising
that she intended to present it to Judge Clark at motions court before her on March 29, 2018.
(Docket No. 1 at ¶¶ 14-15). Judge Clark responded to the email, again copying Ducote, and stated
that she would not be holding motions court on that date as she was unavailable. (Id. at ¶ 18; Pl.
Ex. G). Pride then requested an alternate time to present the motion in court to which Judge Clark
responded if the matter was an emergency that it could be presented to Judge Hans-Greco on March
29, 2018, who was handling motions court on that day or that she could present it to Judge Clark
when she was available on April 19, 2018. (Id.).
With the assistance of Ducote, Silver responded to these communications by removing the
motion for sanctions – which had not even been filed in state court – to federal court. In the Notice
of Removal, Silver admitted that Bertenthal had “initiated” his motion for sanctions in the Court
3
of Common Pleas of Allegheny County and that the motion “is pending in the Court of Common
Pleas of Allegheny County.” (Civ. A. No. 18-393, Docket No. 1 at ¶ 2). Ducote also stated that
he was appearing as Silver’s counsel and “in proper person” or also as a pro se party representing
his own interests. (Id. at ¶ 1). This Court promptly remanded the matter to the Court of Common
Pleas sua sponte, finding the removal to be both procedurally and substantively defective. See
Bertenthal v. Silver, Civ. A. No. 18-393, Docket No. 3 (W.D. Pa. Mar. 27, 2018). Among other
things, this Court noted that it was procedurally improper to remove only a motion from a state
case and that a well-pleaded federal defense under the First Amendment could not serve as the
basis for a removal of a state cause of action to federal court.2 (Id.).
Undeterred, Silver and Ducote filed this lawsuit seeking injunctive relief against the Court
of Common Pleas and Judge Clark on April 17, 2018, along with contemporaneously filed motions
seeking a temporary restraining order and/or preliminary injunction. (Docket No. 1). As noted,
Chief Judge Hornak convened proceedings on April 18, 2018, at which time Plaintiffs’ motions
were denied, without prejudice, citing several reasons on the record, including that Plaintiffs were
not likely to succeed on the merits of their claims as the Court should abstain from hearing the
claims under the doctrine of Younger v. Harris.3 (Docket Nos. 15; 22). Despite all of this federal
litigation, the motion for sanctions was not actually presented to Judge Clark and filed with the
Court of Common Pleas until April 19, 2018, at which time the motion was taken under advisement
until a hearing and argument could be held on April 27, 2018. (Docket No. 32-2 at ¶ 16). Judge
Clark also ordered the following:
It is further ORDERED that while the ruling on the Motion
is pending, Plaintiff, Plaintiff’s Counsel, Defendant or Defendant’s
2
This Court did not comment on the fact that the motion had not been filed in the Court of Common Pleas and
was only emailed to Judge Clark and opposing counsel because that fact was not revealed in the Notice of Removal.
3
After the hearing, the matter was reassigned to this Court as related to the removal case. See Bertenthal v.
Silver, Civ. A. No. 18-393, Docket No. 3 (W.D. Pa. Mar. 27, 2018).
4
Counsel shall NOT publicly speak or communicate about this case
including, but not limited to, print and broadcast media, on-line or
web-based communication, or inviting the public to view existing
on-line or web-based publications. All existing publications about
the case shall remain in place to enable the Court to review the
publications.
This Order does not prohibit any party or counsel from
publicly speaking or expressing an opinion about the Judge,
including disclosing the entry of this Order of Court.
(Id.).
Apparently unsatisfied with the Orders issued by Chief Judge Hornak and Judge Clark,
Plaintiffs filed their Ex Parte Motion to Amend and Supplement Complaint, and their
Supplemental Application for a Preliminary Injunction on April 20, 2018. (Docket Nos. 17; 18).
Plaintiffs sought to amend their complaint to add Bertenthal as a defendant and to supplement their
allegations to include the latest activities in the state court proceeding, including Judge Clark’s
interim order. (Id.). This Court issued an Order on April 23, 2018 denying such motions, without
prejudice, holding that Plaintiff had failed to state a plausible claim under § 1983 against
Bertenthal, who is not a state actor potentially subject to liability and finding the supplemental
application to be procedurally defective. (Docket No. 23).
The parties returned to state court and continued litigating the motion for sanctions at
another hearing before Judge Clark on April 27, 2018. Plaintiffs admit that they raised their First
and Fourteenth Amendment defenses in opposition to Bertenthal’s motion for sanctions in a
written brief and during the hearings. (Docket No. 34 at 4). Ultimately, Judge Clark rejected
Plaintiffs’ defense to the motion relying upon these constitutional provisions and entered the
following Order:
It is hereby ORDERED that […] Susan Silver; Richard
Ducote, Esquire; and Victoria McIntyre, Esquire shall NOT speak
publicly or communicate about this case including, but not limited
to, print and broadcast media, on-line or web-based
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communications, or inviting the public to view existing on-line or
webbased publications. The following is also ORDERED.
1. […] Susan Silver; Richard Ducote, Esquire; and
Victoria McIntyre shall NOT direct or encourage
third parties to speak publicly or communicate about
this case including, but not limited to, print and
broadcast
media,
on-line
or
web-based
communications, or inviting the public to view
existing on-line or web-based publications.
2. […] Susan Silver; Richard Ducote, Esquire; and
Victoria McIntyre may provide public testimony in
the State House and/or Senate and in the United
States Congress and Senate about parental alienation,
sexual abuse of children in general or as it relates to
this case. However, in providing such testimony,
they shall NOT disclose any information that would
identify or tend to identify the Child. [Silver] shall
NOT publically [sic] state her name, the name of the
Child, or [Bertenthal’s] name. Attorney Ducote and
Attorney McIntyre shall NOT publically [sic] refer
to [Silver], the Child, or [Bertenthal] by name or in
any manner that would tend to identify the
aforementioned parties.
3. [Silver] and Counsel shall remove information
about this case, which has been publically [sic]
posted by [Silver] or Counsel, included but not
limited to, the press release, the press conference on
the YouTube site, the Drop Box and its contents, and
other online information accessible to the public,
within twenty-four (24) hours. [Silver] and Counsel
shall download or place the aforementioned
information onto a thumb drive, which shall be filed
with this court.
…
This Order does not prohibit any party or counsel from publicly
speaking or expressing an opinion about the Judge, including
disclosing the entry of this Order of Court after the information has
been removed as set forth, above. However, such expression shall
NOT contain the name of the Child or other information, which
would tend to identify the Child.
6
(Docket No. 32-2 at ¶ 20; Pl. Ex. G). In the Findings of Fact contemporaneously filed with this
Order, Judge Clark noted the following:
16. There is no case law directly on point with respect to the
imposition of a “gag” order in a custody case. The majority of the
cases dealing with the restriction of speech in connection with a
court case are criminal and civil cases, where the focus is upon
tainting the jury or the prospective jury pool. In this case, there is
no jury to taint.
17. However, while I strongly support the notion of openness of
courts and the right to free speech under the Constitution, I also
recognize the harm that thoughtless, vexatious, and vengeful speech
can cause a young child caught in the middle of a high-conflict
custody battle. I also find that the conduct of Mr. Ducote borders
on professional misconduct.
18. In this case, I find that the right of the young child caught in the
middle of a high-conflict custody battle to live free from undue
scrutiny, ridicule, or scorn, outweighs the rights of [Silver] and her
attorney to engage in thoughtless, toxic, misleading, and vengeful
discourse about this case.
19. While it is tempting to impose monetary sanctions against
[Silver] and her attorney, they have not violated any order of court
with regard to speaking publicly about this case, and thus, are not in
contempt of this court.
(Id.).
Plaintiffs appealed Judge Clark’s Order to the Superior Court of Pennsylvania on May 16,
2018. (Docket No. 36-1). Their Statement of Matters Complained of on Appeal states that:
1) The trial court legally erred and abused its discretion in granting
[Bertenthal’s] Motion for Other Relief in part and entering a gag
order constituting a content-based restriction on speech,
prohibiting […] Susan Silver, Richard Ducote, Esq. and Victoria
McIntyre, Esq. from speaking publicly or communicating about
this case, in violation of their rights under the First and
Fourteenth Amendments to the United States Constitution and
the Pennsylvania Constitution, and without any legal or factual
justification in support.
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(Id.). Judge Clark filed an Opinion dated July 6, 2018 which addresses the notice of appeal. See
Bertenthal v. Silver, FD-15-008183, Document No. 329 (C.P. Allghy Jul. 6, 2018). Relevant here,
Judge Clark stated that:
[Silver] raises one issue on appeal. [Silver] contends that I legally
erred and abused my discretion in granting [Bertenthal’s] Motion
for Other Relief in part and entering a gag order constituting a
content-based restriction on speech, prohibiting [Silver] and her
lawyers from speaking publicly or communicating about this case,
in violation of their rights under the First and Fourteenth
Amendments to the United States Constitution and the Pennsylvania
Constitution, and without any legal or factual justification in
support. I strongly disagree.
(Id.). Hence, the constitutionality of the April 27, 2018 Order is squarely before the Superior
Court.4
This federal case remained stagnant for nearly two months until June 12, 2018, at which
time Plaintiffs filed their second motion for temporary restraining order and preliminary injunction
and another motion to amend or correct the complaint. (Docket Nos. 24-26). The Court denied
these motions, without prejudice, because the filings contained numerous references to the full
name of a minor child in violation of the Local Civil Rule 5.2.D.2. as well as private medical
information of the child. (Docket No. 28). The Court also found that Plaintiffs had once again
failed to conform their motions and briefs to this Court’s Practices and Procedures, containing
many of the same types of defects as the prior filings. (Id.). Plaintiffs subsequently submitted a
motion under Rule 60(b) seeking relief from that Order, (Docket Nos. 29, 30), which the Court
The docket report for the appeal at 754 WDA 2018 reflects that the Superior Court denied Silver’s expedited
application for a stay of the April 27, 2018 Order; accepted briefing from the parties on the appeal; and the matter was
argued before a 3-judge panel consisting of Judge John T. Bender; Judge Jacqueline O. Shogan; and Judge Mary P.
Murray on October 31, 2018. See Silver v. Bertenthal, Appeal No. 754 WDA 2018 (Pa. Super. Ct. 2018). The current
status of the appeal is reported as “awaiting decision.”
4
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denied, reiterating its directives that any future filings shall comply with “this Court’s Practices
and Procedures, the Orders of this Court and the Local Rules.” (Docket No. 31).
Plaintiffs filed their Third Ex Parte Motion to Amend and Supplement Complaint and Third
Supplemental Application for a Preliminary Injunction and for Expedited Hearing on June 19,
2018. (Docket Nos. 32-34). Plaintiffs seek to amend the Complaint for the purposes of adding
McIntyre, an associate attorney also representing Silver in the Court of Common Pleas, as a
Plaintiff and to include additional allegations concerning events that took place since the filing of
the original Complaint. (See Docket No. 32-2 at ¶¶ 5, 20). To this end, Plaintiffs propose to add
allegations concerning Judge Clark’s entry of Orders on April 19, 2018 and April 27, 2018 and the
fact that Bertenthal subsequently brought a motion for contempt against Silver due to posts she
allegedly made on Twitter which was also to be heard before Judge Clark.5 (Id. at ¶¶ 16, 20, 22;
Pl. Ex. I). Plaintiffs’ proposed amended complaint once again seeks only declaratory and
injunctive relief against Judge Clark and the Court of Common Pleas, alleging violations of their
First and Fourteenth Amendment rights. (Docket No. 32-2 at 10-11). Among the attachments,
Plaintiffs have included numerous materials from the record in the state court action. (Pl. Ex. AI). In their Prayer for Relief, Plaintiffs request all of the following:
a. A declaratory judgment that the April 27, 2018, Order of
Court, attached hereto as Ex. G, is unconstitutional under the United
States Constitution; and
b. A declaratory judgment that the First and Fourteenth
Amendments protect Plaintiffs’ right to speak publicly about this
case, and, specifically, to engage in the conduct prohibited by the
April 27, 2018, Order; and
c. Preliminary and permanent injunctions, without the
requirement of security, enjoining Defendant Court of Common
5
The Court takes judicial notice of the Order of Court issued by Judge Clark dated July 11, 2018 dismissing
the Petition for Contempt and vacating the corresponding rule to show cause. See Bertenthal v. Silver, FD 15-008183010, Document No. 335 (C.P. Allghy Jul. 11, 2018).
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Pleas of Allegheny County and Defendant the Hon. Kim Berkeley
Clark from enforcing the April 27, 2018, Order; and
d. Preliminary and permanent injunctions, without the
requirement of security, enjoining Defendant Court of Common
Pleas of Allegheny County and Defendant the Hon. Kim Berkeley
Clark from entering any order additionally financially punishing,
enjoining, restricting, or amounting to a prior restraint on Plaintiffs’
constitutionally protected rights to free speech or punishment for its
past use; specifically, including but not limited to enjoining that
relief set forth in the proposed “Order of Court” attached [to
Bertenthal’s Petition for Contempt] as Page 9 to Ex. I; and
e. Such other relief as this Honorable Court may deem just
and deserving.
(Docket No. 32-2 at 10-11).
Defendants filed their briefs in opposition to Plaintiffs’ motions on July 10, 2018. (Docket
Nos. 36; 37). Although they have yet to affirmatively move to dismiss under Rule 12, Defendants
raise numerous defenses to this action in their papers, including challenging subject matter
jurisdiction under the Rooker-Feldman doctrine; asking that the Court abstain under Younger v.
Harris; and asserting several immunities from suit. (Id.). All told, Defendants maintain that
Plaintiffs are unlikely to succeed on the merits of their claims as this Court lacks subject matter
jurisdiction over the action and/or Plaintiffs have failed to state plausible claims for relief against
them and that the proposed amendments to the complaint are futile for the same reasons. (Id.).
On July 24, 2018, Plaintiffs submitted reply briefs addressing those defenses, advocating
that their amendment should be permitted and that a preliminary injunction should issue. (Docket
Nos. 39; 40). The Court directed Defendants to file sur-reply briefs which they did on August 6,
2018, providing further counter-argument on the points raised in the replies. (Docket Nos. 42; 43).
No further briefing arrived. However, as noted, this Court has monitored the status of the appeal
to the Superior Court but that matter remains unresolved at this time. See Silver v. Bertenthal,
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Appeal No. 754 WDA 2018 (Pa. Super. Ct. 2018). Since it is unclear when the Superior Court
may rule on the appeal, the Court will now proceed to address Plaintiffs’ motions.
III.
RELEVANT LEGAL STANDARDS
Plaintiffs’ motions for a preliminary injunction and to amend their complaint seek relief
under Rules 65 and 15 and the defenses raised challenging subject matter jurisdiction and the
plausibility of Plaintiffs’ claims also implicate Rules 12(b)(1) and 12(b)(6). (Docket Nos. 32-34;
36-37). The relevant legal standards governing same follow.
A. Preliminary Injunction
The grant or denial of a preliminary injunction is within the sound discretion of the Court.
See American Exp. Travel Related Services, Inc. v. Sidamon-Eristoff, 669 F.3d 359, 366 (3d Cir.
2012). The primary purpose of preliminary injunctive relief “is maintenance of the status quo until
a decision on the merits of a case is rendered.” Acierno v. New Castle County, 40 F.3d 645, 647
(3d Cir. 1994). “Status quo” refers to “the last, peaceable, noncontested status of the parties.” Kos
Pharm., Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d Cir. 2004). The decision to issue a preliminary
injunction is governed by a four-factor test, wherein Plaintiffs must demonstrate:
“(1) that [they are] reasonably likely to prevail eventually in the
litigation and (2) that [they are] likely to suffer irreparable injury
without relief. If these two threshold showings are made the District
Court then considers, to the extent relevant, (3) whether an
injunction would harm the [defendants] more than denying relief
would harm the plaintiff[s] and (4) whether granting relief would
serve the public interest.”
K.A. ex rel. Ayers v. Pocono Mountain Sch. Dist., 710 F.3d 99, 105 (3d Cir. 2013) (quoting Tenafly
Eruv Ass’n v. Borough of Tenafly, 309 F.3d 144, 157 (3d Cir. 2002)).
The United States Court of Appeals for the Third Circuit has held that Rule 65 of the
Federal Rules of Civil Procedure “does not make a hearing a prerequisite for ruling on a
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preliminary injunction.” Bradley v. Pittsburgh Bd. of Education, 910 F.2d 1172, 1176 (3d
Cir.1990). A district court may rule on a motion for a preliminary injunction without conducting
an evidentiary hearing. Id. An evidentiary hearing is not necessary when “based on affidavits and
other documentary evidence if the facts are undisputed and the relevant factual issues are resolved”
or if “the movant has not presented a colorable factual basis to support the claim on the merits or
the contention of irreparable harm.” Bradley, 910 F.2d at 1178. If the moving parties are “unable
to establish a prima facie case demonstrating a reasonable likelihood of success on the merits of
[their claims], [they are] not entitled to a hearing on [their] motion for a preliminary injunction.”
Tegg Corp. v. Beckstrom Elec. Co., Civ. A. No. 08-435, 2008 WL 2682602, at *11 (W.D. Pa. July
1, 2008).
B. Leave to Amend
Rule 15(a)(2) provides that “a party may amend its pleading only with the opposing party’s
written consent or the court’s leave.” FED. R. CIV. P. 15(a)(2). “The court should freely give leave
when justice so requires.” Id. “[M]otions to amend pleadings should be liberally granted.” Long v.
Wilson, 393 F.3d 390, 400 (3d Cir. 2004) (citations omitted). Indeed, “[l]eave to amend must
generally be granted unless equitable considerations render it otherwise unjust.” Arthur v. Maersk,
Inc., 434 F.3d 196, 200 (3d Cir. 2006) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). “Among
the factors that may justify denial of leave to amend are undue delay, bad faith, and futility.” Id.
(citing Lorenz v. CSX Corp., 1 F.3d 1406, 1414 (3d Cir. 1993)). “Given the liberal standard under
Rule 15(a), ‘the burden is on the party opposing the amendment to show prejudice, bad faith, undue
delay, or futility.’” Graham v. Progressive Direct Ins. Co., 271 F.R.D. 112, 122 (W.D. Pa. 2010)
(citing Chancellor v. Pottsgrove Sch. Dist., 501 F. Supp. 2d 695, 700 (E.D. Pa. 2007)). “Leave to
amend may be denied for futility if ‘the complaint, as amended, would fail to state a claim upon
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which relief could be granted.’” Hayden v. Westfield Ins. Co., 586 F. App’x 835, 841 (3d Cir.
2014) (quoting Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000) and citing In re Burlington Coat
Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997)). Similarly, leave to amend may be denied
“where a federal court would lack subject matter jurisdiction over the amended complaint.” Id.
(citing Miklavic v. USAir Inc., 21 F.3d 551, 557–58 (3d Cir.1994)). The test under Rule 15(a) “is
in the disjunctive, meaning that if [Defendants] meet[ ] [their] burden to prove any one of these
elements, the [amendment] should not be permitted.” Id.
C. Lack of Subject Matter Jurisdiction/Failure to State a Claim
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) challenges a
Court’s subject-matter jurisdiction over the plaintiff’s claims. Fed. R. Civ. P. 12(b)(1). “At issue
in a Rule 12(b)(1) motion is the court’s ‘very power to hear the case.’” Judkins v. HT Window
Fashions Corp., 514 F.Supp.2d 753, 759 (W.D. Pa. 2007) (quoting Mortensen v. First Fed. Sav.
and Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)). As the parties asserting jurisdiction, the
Plaintiffs bear the burden of showing that their claims are properly before the Court. Dev. Fin.
Corp. v. Alpha Housing & Health Care, 54 F.3d 156, 158 (3d Cir. 1995). In reviewing a Rule
12(b)(1) motion, a court must determine whether the attack on its jurisdiction is a facial attack or
a factual attack. A facial attack challenges the sufficiency of the Plaintiffs’ pleadings. Petruska v.
Gannon Univ., 462 F.3d 294, 302 n.3 (3d Cir. 2006). When considering a facial attack, a court
must accept the allegations contained in the plaintiff's complaint as true. Id. A factual attack on the
court’s jurisdiction must be treated differently. Id. When considering a factual attack, the court
does not attach a presumption of truthfulness to Plaintiffs’ allegations, and the existence of
disputed material facts does not preclude the court from deciding for itself the jurisdictional issues
raised in the motion to dismiss. Mortensen, 549 F.2d at 891.
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When reviewing a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6),
the Court must “accept all factual allegations as true, construe the complaint in the light most
favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint,
the plaintiff may be entitled to relief.” Eid v. Thompson, 740 F.3d 118, 122 (3d Cir. 2014) (quoting
Phillips v. Cty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)). To survive a Rule 12(b)(6)
challenge, a plaintiff’s “[f]actual allegations must be enough to raise a right to relief above the
speculative level.” Id. (quoting Bell Atl. v. Twombly, 550 U.S. 544, 555 (2007)). “Thus, ‘only a
complaint that states a plausible claim for relief survives a motion to dismiss.’” Id. (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)).
Although the Court must accept the allegations in the complaint as true, it is “not compelled
to accept unsupported conclusions and unwarranted inferences, or a legal conclusion couched as a
factual allegation.” Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (quoting Baraka v.
McGreevey, 481 F.3d 187, 195 (3d Cir. 2007)). “Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 555). Instead, the plaintiff must plead facts which permit the court to make
a reasonable inference that the defendant is liable. Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at
556–57.
Consistent with these principles, the Third Circuit Court of Appeals has prescribed a threestep analysis for purposes of determining whether a claim is plausible. First, the court should
“outline the elements a plaintiff must plead to a state a claim for relief.” Bistrian v. Levi, 696 F.3d
352, 365 (3d Cir. 2012). Second, the court should “peel away” legal conclusions that are not
entitled to the assumption of truth. Id.; see also Iqbal, 556 U.S. at 679 (“While legal conclusions
can provide the framework of a complaint, they must be supported by factual allegations.”). Third,
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the Court should assume the veracity of all well-pled factual allegations and then “determine
whether they plausibly give rise to an entitlement to relief.” Bistrian, 696 F.3d at 365 (quoting
Iqbal, 556 U.S. at 679). This third step of the analysis is “a context-specific task that requires the
reviewing court to draw on its judicial experience and common sense.” Id. (quoting Iqbal, 556
U.S. at 679).
IV.
DISCUSSION
At the outset, as there are no extraordinary circumstances here, this Court deems Chief
Judge Hornak’s decision denying Plaintiffs’ initial motion for a temporary restraining order and/or
a preliminary injunction as the law of the case and his rulings that Plaintiffs are not likely to success
on the merits of their First and Fourteenth Amendment claims set forth in their original Complaint
continue to apply. See Zimmerman v. Corbett, 738 F. App’x 87, 87-88 (3d Cir. 2018 (quoting
Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816-17, 108 S.Ct. 2166, 100 L.Ed.2d
811 (1988), which quoted Arizona v. California, 460 U.S. 605, 618 n.8, 103 S.Ct. 1382, 75 L.Ed.2d
318) (“Under the law of the case doctrine, ‘that decision should continue to govern’ unless there
are ‘extraordinary circumstances such as where the initial decision was clearly erroneous and
would work a manifest injustice.’”)).
Hence, the Court focuses on whether Plaintiffs’
supplemental allegations and the specific declaratory and injunctive relief sought in their proposed
third amended complaint support the issuance of a preliminary injunction and whether the defenses
raised by Defendants preclude the entry of same and the amendment of the lawsuit.
Having
carefully considered the parties’ positions, the Court finds that many of the defenses asserted by
Defendants are meritorious such that Plaintiffs’ motions are denied and thus dismisses their
original Complaint, with prejudice.
A. Rooker-Feldman Doctrine
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The Court turns initially to Defendants’ argument that the Court lacks subject matter
jurisdiction over the proposed third amended complaint because the relief requested therein is
barred by the Rooker-Feldman doctrine. (Docket Nos. 36-37). Plaintiffs counter that the doctrine
does not apply for three primary reasons: first, neither Ducote nor McIntyre were parties to the
state court proceedings; second, the April 27, 2018 Order they seek relief from was not issued at
the time this lawsuit was filed; and, third, the April 27, 2018 Order did not specifically analyze
their defenses under the First and Fourteenth Amendments. (Docket Nos. 39-40). In this Court’s
estimation, the proposed amendments and supplements to Plaintiffs’ complaint are futile because
they are attempting to assert an impermissible direct challenge to and/or appeal of the April 27,
2018 Order entered by Judge Clark over which this Court lacks subject matter jurisdiction. See
Hayden, 586 F. App’x at 841.
The prevailing principle of the Rooker-Feldman doctrine is that “federal courts lack
jurisdiction over suits that are essentially appeals from state-court judgments.” Great W. Mining
& Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 166 (3d Cir. 2010). Application of the
doctrine is restricted to “cases brought by state-court losers complaining of injuries caused by
state-court judgments ... and inviting district court review and rejection of those judgments.” Exxon
Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 284 (2005). In order for the doctrine
to apply, it must be shown that: (1) the federal plaintiff lost in state court; (2) the plaintiff is
complaining of injuries caused by the state-court judgment; (3) the judgment was 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 (internal quotation marks omitted) (quoting
Exxon Mobil, 544 U.S. at 284). “The second and fourth requirements are the key to determining
whether a federal suit presents an independent, non-barred claim.” Id. at 166.
16
Applied to the proposed third amended complaint, this Court holds that the “key” second
and fourth elements of the Rooker-Feldman doctrine are plainly satisfied. Id. To this end, the
primary allegations of Plaintiffs’ proposed third amended complaint are that the April 27, 2018
Order is an unconstitutional gag order which serves as an impermissible prior restraint on the rights
of Silver, Ducote and McIntyre to freedom of speech protected by the First and Fourteenth
Amendments. (Docket No. 32-2 at ¶¶ 19-21; 23-28; 10-11). In fact, as is more fully discussed
below, Plaintiffs admit that the source of their alleged injuries is the April 27, 2018 Order which
they believe restrains their speech. They also concede that they had not yet sustained any injuries
when they initiated these federal proceedings before Judge Clark ruled. (See Docket No. 39 at 9
(“the April 27, 2018, unconstitutional gag order was not yet issued by the Court of Common Pleas
when Plaintiffs sought federal relief; […] Thus, there had not yet been any injuries issued (sic) by
state court judgments”)). Further, Plaintiffs are clearly inviting the Court to review and reject the
state court judgment as the relief they seek includes: declaring the April 27, 2018 Order
unconstitutional; declaring that the conduct prohibited by the April 27, 2018 Order is
constitutionally protected; enjoining the enforcement of the April 27, 2018 Order; and enjoining
the imposition of any further sanctions as a result of the April 27, 2018 Order, such as a contempt
proceeding initiated by Bertenthal against Silver. (Docket No. 32-2 at 10-11). In short, these
claims for relief are “inextricably intertwined” with the sanctions proceedings and the state court’s
April 27, 2018 Order and ask for “exactly the type of determination that the Rooker-Feldman
doctrine prohibits.” Van Tassel v. Lawrence County Domestic Relations Sections, et al., 390 F.
App’x 201, 203 (3d Cir. 2010) (citations omitted).
Plaintiffs contend that FOCUS v. Allegheny County Court of Common Pleas, 75 F.3d 834,
840 (3d Cir. 1996) counsels that the Rooker-Feldman doctrine cannot be applied because neither
17
Ducote nor McIntyre were parties to the state custody proceedings and their claims were not
adjudicated in that case.
(See Docket No. 39).
But, this Court believes that FOCUS is
distinguishable for several reasons. As a factual matter, both Silver and her lawyers (Ducote and
McIntyre) are effectively parties to the sanctions proceedings in state court, i.e., the lawyers were
the subject of the motion for sanctions alleging violations of the Pennsylvania Rules of
Professional Conduct and the relevant statute, 42 Pa.C.S. § 2503(7), which authorizes an award of
attorney’s fees against litigants and their counsel6; the lawyers appeared at multiple proceedings
before Judge Clark and asserted their own defenses under the First and Fourteenth Amendment in
opposition to same; Judge Clark explicitly named them in the April 27, 2018 Order and analyzed
their conduct in her corresponding findings; and the appeal of that order to the Superior Court
expressly seeks to overturn that decision as to Silver and her lawyers. In addition, Ducote even
admitted that he was properly deemed a party to the sanctions proceedings when he sought to
remove the motion to this Court “in proper person” or also as a pro se party representing his own
interests. (See Civ. A. No. 18-393, Docket No. 1 at ¶ 1).
Further, FOCUS was a third party to the Baby Byron case seeking only to speak to the
lawyers and parties to the case who were restrained by the gag order. FOCUS, 75 F.3d at 838-40.
The state courts denied FOCUS’ attempt to intervene in those proceedings in order to assert its
own rights such that FOCUS’ claims were never adjudicated in the state system. Id. at 840. While
the Court of Appeals held that the Rooker-Feldman doctrine did not bar FOCUS’ claims, it
expressly noted that “the parties to the Baby Byron case could not bring a First Amendment case
6
The Court notes that Ducote and McIntyre are clearly participants in the state court litigation and potentially
subject to sanctions under Pennsylvania law. To this end, 42 Pa. C.S. § 2503(7) provides that “[a]ny participant who
is awarded counsel fees as a sanction against another participant for dilatory, obdurate or vexatious conduct during
the pendency of a matter,” 42 Pa. C.S. § 2503(7) and § 102 defines “participant” as “[l]itigants, witnesses and their
counsel.” 42 Pa. C.S. § 102.
18
in federal court challenging the gag orders.” Id. at n.4. In stark contrast to the third party
organization in FOCUS, Ducote and McIntyre have been intimately involved with the sanctions
proceedings in state court and have asserted their own defenses under the First and Fourteenth
Amendments throughout those proceedings. (See e.g., Docket No. 34 at 4). Like Silver, they are
best characterized as “state court losers” because they argued their positions to Judge Clark, who
ruled against them. Exxon, 544 U.S. at 284; Van Tassel, 390 F. App’x at 203. To the extent they
object, they should continue to challenge that decision on appeal to the Superior Court rather than
advance their contentions in this federal action.
Plaintiffs also contest the application of the Rooker-Feldman doctrine on grounds that they
filed this federal lawsuit prior to Judge Clark entering the April 27, 2018 Order. (Docket Nos. 3940). While Plaintiffs are correct inasmuch as their original Complaint was filed ten days before
that Order such that it may be inappropriate to rule that this entire lawsuit is barred by the RookerFeldman doctrine, they have failed to demonstrate that this Court should permit them to amend
their complaint to assert a direct challenge to a subsequent order in a proposed pleading which was
not submitted until more than seven weeks after the order was entered. See Great Mining, 615
F.3d at 166. Again, Plaintiffs admit that they had yet to sustain any injury at the time they filed
their original Complaint and that pleading is subject to dismissal for reasons set forth in additional
detail below. (See Docket No. 39 at 9). This Court’s ruling is more narrow as it concludes that it
lacks subject matter jurisdiction over the relief requested in the proposed third amended complaint
which is effectively a new lawsuit seeking relief from subsequent harm they allegedly sustained at
a later point in time. Exxon, 544 U.S. at 284; Van Tassel, 390 F. App’x at 203.
For all of these reasons, Plaintiffs’ motions to amend [32] and for a preliminary injunction
[33] are denied because the Rooker-Feldman doctrine is appropriately applied, making Plaintiffs’
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proposed amendments and supplements to the complaint futile.7 See Hayden, 586 F. App’x at 841.
They have likewise failed to meet their burden to demonstrate that the issuance of a preliminary
injunction is warranted. See Bradley, 910 F.2d at 1178.
B. Younger Abstention
Moving on, Chief Judge Hornak denied the Plaintiffs’ initial application for a
TRO/preliminary injunction, in part, on the basis of Younger abstention, and declined to enjoin the
proceedings on the motion for sanctions before Judge Clark or to prospectively declare Plaintiffs’
rights vis-à-vis a potential gag order as they requested. (Docket Nos. 15; 22). Defendants maintain
that the same principles should bar Plaintiffs’ proposed amendments and supplements to their
complaint and the present motion for a preliminary injunction. (Docket Nos. 36-37; 42-43).
Plaintiffs respond that Younger is inapplicable for many of the same reasons they oppose the
application of the Rooker-Feldman doctrine. (Docket Nos. 39-40). In this regard, they contend
that there are no ongoing proceedings in state court to which the lawyers, Ducote and McIntyre,
are parties; and, Judge Clark did not analyze their constitutional claims. (Id.). They further suggest
that the case does not involve important state interests and that their First Amendment rights should
trump any such interests. (Id.). Once again, the Court has reviewed the parties’ arguments and
The Court notes that to the extent that the Rooker-Feldman doctrine does not operate to defeat this Court’s
subject matter jurisdiction over Plaintiffs’ § 1983 claims for injunctive and declaratory relief, collateral estoppel would
apply to bar the claims on the merits. See Great Western, 615 F.3d at 170. Collateral estoppel applies when:
(1) the issue to be precluded […] is identical to the issue decided in the prior
proceeding; (2) the issue was actually litigated in the prior proceeding; (3) the
court in the prior proceeding issued a final judgment on the merits; (4) the
determination of the issue was essential to the prior judgment; and (5) the party
against whom the doctrine is asserted […] was a party to or in privity with a party
to the earlier proceeding.
Gage v. Provenzano, 571 F. App'x 111, 113 (3d Cir. 2014) (quotation omitted); Studli v. Children & Youth and
Families Central Regional Office, 346 F. App’x 804 (3d Cir. 2009) (same). Each of these factors are met as Plaintiffs
or their privies were parties to the sanctions proceedings; raised their constitutional claims in defense of the motion
for sanctions; a judgment was issued against their position; and, the constitutional defense was essential to the
judgment.
7
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concurs with Defendants that Younger abstention provides an alternative basis to deny the pending
motions.
The Younger abstention doctrine generally provides that “federal courts [should] abstain in
certain circumstances from exercising jurisdiction over a claim where resolution of that claim
would interfere with an ongoing state proceeding.” Miller v. Mitchell, 598 F.3d 139, 145–46 (3d
Cir. 2010) (citing Addiction Specialists, Inc. v. Twp. of Hampton, 411 F.3d 399, 408 (3d Cir.
2005)). The United States Supreme Court has held that abstention is only warranted in
“exceptional” circumstances where “the prospect of undue interference with state proceedings
counsels against federal relief.” Sprint Communications, Inc. v. Jacobs, –––U.S. ––––, 134 S.Ct.
584, 588, 187 L.Ed.2d 505 (2013). “These ‘exceptional’ circumstances arise only where the
federal action interferes with one of three categories of cases: (1) ‘ongoing state criminal
prosecutions' (as in Younger itself); (2) ‘certain civil enforcement proceedings'...; and (3) ‘civil
proceedings involving certain orders...uniquely in furtherance of the state courts' ability to perform
their judicial functions' (such as state court civil contempt proceedings).” ACRA Turf Club, LLC
v. Zanzuccki, 748 F.3d 127, 131–32 (3d Cir. 2014) (quoting Sprint, 134 S.Ct. at 588). The hallmark
of each of the three categories is that the state court proceeding is either criminal or “quasicriminal” in nature. Sprint, 134 S.Ct. at 593.
In this Court’s estimation, this federal action is best characterized as within the third
category of cases because Plaintiffs seek to enjoin enforcement of the April 27, 2018 Order and to
restrain the Defendants from exercising their contempt power in the event of a violation of same.
(Docket No. 32-2 at 10-11). Indeed, Plaintiffs explicitly request relief in the form of an injunction
preventing Judge Clark and the Court of Common Pleas from holding Silver in contempt for posts
that she made on Twitter, as Bertenthal alleged in a petition for contempt. (Id. at ¶ 22; 10-11; Pl.
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Ex. I). Therefore, this matter is most akin to Van Tassel v. Lawrence County, et al., 659 F. Supp.
2d 672 (W.D. Pa. 2009), aff’d 390 F. App’x 201 (3d Cir. 2010). In that case, the plaintiff was
ordered to pay attorneys’ fees to her former spouse pursuant to § 2503(7) due to her vexatious
litigation conduct and this Court abstained under Younger from issuing an injunction enjoining
subsequent contempt proceedings brought against her to enforce that order and later dismissed the
action. Id.; see also Van Tassel, 2009 WL 2588815 (W.D. Pa. Aug. 19, 2019). Certainly, a state
court’s issuance and enforcement of orders governing the conduct of litigants and attorneys
appearing before it in child custody matters where the best interests of the child are at issue are
unquestionably actions taken “in furtherance of the state courts ability to perform their judicial
functions.” ACRA Turf, 748 F.3d at 131-32.
Since this Court is satisfied that the state court proceeding is “exceptional,” it next
considers the three factors promulgated by the Supreme Court in Middlesex to determine whether
“(1) there are ongoing state proceedings that are judicial in nature; (2) the state proceedings
implicate important state interests; and (3) the state proceedings afford an adequate opportunity to
raise the federal claims.” Hatfield v. Fitzgerald, 2013 WL 3305492, at *2 (W.D. Pa. June 28, 2013)
(quoting Addiction Specialists, 411 F.3d at 408). Each of these criteria are met in this case.
On the first point, the challenged order resulted from state court proceedings on a contested
motion presented to Judge Clark, who accepted briefing from Plaintiffs and her counsel, held two
hearings before issuing the order, the Plaintiffs’ appeal of which remains pending before the
Superior Court.
Plaintiffs’ position that the federal action was initiated before those state
proceedings is undermined by their prior attempt to remove the motion for sanctions to federal
court and their corresponding admission that the motion was pending in the Court of Common
Pleas at that time. (See Civ. A. No. 18-393, Docket No. 1). In any event, “the state action need
22
not actually pre-date the federal action for Younger to apply” as long as it was commenced before
substantive proceedings took place in federal court, as is the case here. Moreno v. Penn Nat.
Gaming, Inc., 904 F. Supp. 2d 414, 420 (M.D. Pa. 2012) (citations omitted).
The second element is also satisfied because the state proceedings involve the important
state interests inherent in all child custody proceedings, i.e., the best interests of the child, as well
as the ability of state judges to issue orders governing the conduct of litigants and their counsel
appearing before the court and to enforce such orders through their contempt powers. See e.g.,
Anthony v. Council, 316 F.3d 412, 421-22 (3d Cir. 2003) (citations omitted) (citing Juidice v. Vail,
430 U.S. 327, 337, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977) and Pennzoil Co. v. Texaco Inc., 481
U.S. 1, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987)) (holding that state has important interest in contempt
and child support proceedings); Allen v. DeBello, 861 F.3d 433, 442 (3d Cir. 2017) (“the bestinterests-of-the-child standard statute gives state court judges broad discretion to determine a
custody situation.”); Arnold v. Arnold, 847 A.2d 674, 677 (Pa.Super.Ct. 2004) (“The
Commonwealth has a duty of paramount importance, to protect the child’s best interests and
welfare. To that end, it may always entertain an application for modification and adjustment of
custodial rights.”). With respect to the third criterion, Plaintiffs were afforded the opportunity to
raise their federal claims in the state court proceedings and they did so by presenting their
constitutional defenses to the motion for sanctions in the Court of Common Pleas and have
appealed the adverse decision they received from Judge Clark to the Superior Court asserting the
same grounds. (See Docket No. 36-1). Finally, Plaintiffs have not brought any claims for money
damages such that abstention is appropriate rather than a stay of the case. Cf. Hatfield, 2013 WL
3305492, at *2 (noting that Court must stay rather dismiss claims for monetary relief that cannot
be redressed in a state proceeding).
23
For these reasons, Plaintiffs’ motions to amend [32] and for a preliminary injunction [33]
are denied because, to the extent that this Court would have subject matter jurisdiction over the
proposed third amended complaint, it would follow Younger and its progeny and abstain from
deciding the claims for declaratory and injunctive relief set forth therein. See Hayden, 586 F.
App’x at 841.
C. Eleventh Amendment Immunity and Other Defenses
Defendants contend that Plaintiffs claims for injunctive and declaratory relief set forth in
the proposed third amended complaint are barred by Eleventh Amendment immunity. (Docket
Nos. 36-37). They further maintain that they are not appropriate parties to this § 1983 action which
is otherwise precluded by the Federal Courts Improvements Act, (“FCIA”) and caselaw
interpreting same. (Id.). Plaintiffs counter that Eleventh Amendment immunity does not defeat
their claims which they believe should proceed under the doctrine of Ex Parte Young, 209 U.S.
123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). They also argue that Judge Clark was not acting in an
adjudicatory capacity when she issued the April 27, 2018 Order. (Docket Nos. 39-40). The Court
finds that Defendants are correct in their analysis.
Initially, it is well established that the Court of Common Pleas is entitled to Eleventh
Amendment immunity from civil lawsuits such as this § 1983 action. See Lyman v. Philadelphia
Court of Common Pleas Domestic Relations Div., --- F. App’x ---, Appeal No. 17-2667, 2018 WL
4566270, at *4 (3d Cir. Sept. 24, 2018) (citing Haybarger v. Lawrence Cty. Adult Prob. & Parole,
551 F.3d 193, 198 (3d Cir. 2008) (“all courts in Pennsylvania’s judicial districts are entitled to
Eleventh Amendment immunity.”). Indeed, “Congress did not specifically abrogate the states’
Eleventh Amendment immunity in enacting § 1983.” Id. (citing Will v. Mich. Dep’t of State Police,
491 U.S. 58, 64, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989)). And, “Pennsylvania has not consented
24
to be sued in federal court.” Id. (citing 1 Pa.C.S. § 2310). Plaintiffs seek to avoid Eleventh
Amendment immunity by invoking the doctrine of Ex Parte Young but that exception does not
apply to the state and its agencies, including the Court of Common Pleas. Van Tassel v. Lawrence
Cty. Domestic Relations Section, 659 F. Supp. 2d 672, 695 (W.D. Pa. 2009), aff'd sub nom. Van
Tassel v. Lawrence Cty. Domestic Relations Sections, 390 F. App’x 201 (3d Cir. 2010).
As to Judge Clark, although Ex Parte Young authorizes a suit for prospective injunctive or
declaratory relief against a state official, the other defenses she has raised preclude the relief sought
by Plaintiffs here. See Allen, 861 F.3d at 442. To this end, “[s]ince the enactment of the FCIA,
courts have held that an individual seeking injunctive relief against a judicial officer pertaining to
a judicial act must allege that a declaratory decree was violated, or that declaratory relief was
unavailable, in order to overcome the judicial immunity established by that statute.” Van Tassel,
659 F. Supp. 2d at 698; Lyman, 2018 WL 4566270, at *4. Here, injunctive relief is unavailable
against Judge Clark because Plaintiffs have not alleged that she violated any declaratory decree
nor that declaratory relief is unavailable. See id. Indeed, Plaintiffs expressly seek declaratory
relief in their proposed third amended complaint. (Docket No. 32-2 at 10-11).
Judge Clark also invokes the Third Circuit’s decision in Allen v. DeBello, 861 F.3d 433,
442 (3d Cir. 2017) for the proposition that judges are not proper parties to § 1983 claims
challenging actions taken in their judicial capacity. Plaintiffs counter that Judge Clark was not
performing an adjudicatory function when she issued the April 27, 2018 Order. (Docket Nos. 3940). As is explained above, Plaintiffs are simply wrong on this point in that Judge Clark engaged
in quintessential judicial functions when she presided over the sanctions proceedings by accepting
briefing from the parties; conducting hearings; and, issuing the April 27, 2018 Order as well as her
corresponding factual findings. Cf. Figueroa v. Blackburn, 208 F.3d 435, 443 (3d Cir. 2000)
25
(quoting Stump v. Sparkman, 435 U.S. 349, 362, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978)) (“Factors
which determine whether an act is a ‘judicial act’ ‘relate to the nature of the act itself, i.e., whether
it is a function normally performed by a judge, and to the expectation of the parties, i.e., whether
they dealt with the judge in his judicial capacity.’”). Judge Clark essentially ruled that the best
interests of the child in the custody matter outweighed the First and Fourteenth Amendment rights
of Silver and her lawyers to engage in what she described as “thoughtless, vexatious, and vengeful
speech” about the child custody case. (Docket No. 32-2 at ¶ 20; Pl. Ex. G). Judge Clark further
commented that “the conduct of Mr. Ducote borders on professional misconduct.” (Id.). This case
is therefore distinguishable from other authority relied upon by Plaintiffs where the judicial officer
entered a gag order sua sponte rather than on contested motions practice. (See Docket No. 39-40).
Therefore, Plaintiffs’ position must be cast aside.
To conclude, the Court alternatively denies Plaintiffs’ motions to amend and for a
preliminary injunction because such amendments are futile in light of the well-taken defenses
under the Eleventh Amendment, § 1983 and the FCIA.8 See Hayden, 586 F. App’x at 841.
D. Dismissal of Original Complaint
As a final matter, the Court notes that, despite the repeated denials of preliminary injunctive
relief by Chief Judge Hornak and this Court, the original Complaint remains pending. (See Docket
No. 1). However, the Court finds that the original Complaint is subject to dismissal for several
reasons. Hence, the Court exercises its discretion to dismiss Plaintiffs’ Complaint sua sponte as
Plaintiffs have been provided more than ample opportunity to refute the applicability of the
defenses raised by the Court of Common Pleas and Judge Clark. See Rouse v. City of Pittsburgh,
Civ. A. No. 17-1454, 2018 WL 3209430, at *7 (W.D. Pa. Apr. 27, 2018), report and
8
The Court notes that the claims are also barred by the defense of collateral estoppel. See n.7 supra.
26
recommendation adopted, No. 2:17-CV-1454-AJS, 2018 WL 2325731 (W.D. Pa. May 22, 2018)
(quoting Bethea v. Nation of Islam, 248 Fed. Appx. 331, 333 (3d Cir. 2007) (unpublished) (“a
court may sua sponte dismiss a complaint even if a court does not give notice and an opportunity
to respond where it is ‘clear that the plaintiff cannot prevail and that any amendment would be
futile.’”)).
Initially, “federal courts do not have the power to decide moot questions” and claims for
injunctive relief which are deemed moot may be dismissed for lack of subject matter jurisdiction.
Prater v. City of Philadelphia Family Court, 569 F. App’x 76, 78-79 (3d Cir. 2014) (citing North
Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971)). Here, the original
Complaint is moot to the extent that Plaintiffs seek injunctive relief precluding Defendants from
ruling in Bertenthal’s favor on the sanctions motion as Judge Clark has already done so and entered
the April 27, 2018 Order. (See Docket Nos. 1; 32-2).
In addition, many of the defenses articulated above support dismissal at this juncture. To
this end, the Court of Common Pleas is entitled to Eleventh Amendment immunity from all of
Plaintiffs’ claims; their claims for injunctive relief against Judge Clark must be dismissed as she
is not a proper defendant to a suit under § 1983 and the FCIA challenging actions taken in an
adjudicatory capacity; and consistent with Chief Judge Hornak’s initial ruling, this Court would
abstain under Younger as to any remaining claims for declaratory relief. See §§ IV.A, IV.B, IV.C.,
supra. Insofar as these defenses do not preclude the suit, res judicata and/or collateral estoppel
would bar the action as Plaintiffs raised their constitutional claims in state court and the judgment
is entitled to deference, subject to review by the state appellate courts and, ultimately, the Supreme
Court of the United States. See n.7, supra. Finally, it is clear to this Court that any further
27
amendment of Plaintiffs’ Complaint would be futile such that the dismissal will be with prejudice
and leave to amend will not be granted. See Hayden, 586 F. App’x at 841.
V.
CONCLUSION
Based on the foregoing, Plaintiffs’ motions for leave to amend [32] and for a preliminary
injunction [33] are DENIED and their Complaint [1] is dismissed, with prejudice. An appropriate
Order follows.
s/Nora Barry Fischer
Nora Barry Fischer
U.S. District Judge
Dated: December 12, 2018
cc/ecf: All counsel of record.
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