Opinion
Civil No. 00-1579-KI
February 7, 2001
Paul deParrie Portland, Oregon Plaintiff pro se.
Stephen S. Walters, Per A. Ramfjord STOEL RIVES LLP Portland, Oregon, Allan J. Arffa PAUL, WEISS, RIFKIND, WHARTON GARRISON New York, New York Attorneys for Defendants Planned Parenthood of the Columbia/Willamette, Inc. and Maria Vullo.
David C. Landis Portland, Oregon Attorney for Defendant Carol Bernick.
OPINION and ORDER
Plaintiff Paul deParrie brought this action in state court against Planned Parenthood of the Columbia/Willamette, Inc. ("Planned Parenthood"), Maria Vullo, and Carol Bernick. Lawyers Vullo and Bernick represented Planned Parenthood and other plaintiffs in an earlier action in this court, Planned Parenthood of the Columbia/Willamette, Inc. v. American Coalition of Life Activists, CV95-1671-JO ("PP I"). deParrie's allegations in the action before me concern the current defendants' conduct after the PP I plaintiffs successfully obtained a judgment and permanent injunction. Before the court is deParrie's motion to remand (#27) and defendants' motion to dismiss and for an injunction (#15).
FACTS
After the PP I trial, the Honorable Robert E. Jones entered a money judgment in the PP I plaintiffs' favor on February 22, 1999. On February 25, 1999, Judge Jones entered an order and permanent injunction prohibiting defendants in that case and deParrie from engaging in particular conduct. The injunction specifically named deParrie even though he was not a named defendant in PP I. deParrie is a former employee of Advocates for Life Ministries, Inc. ("ALM"), one of the defendants in PP I.
On September 11, 2000, deParrie filed a complaint against Planned Parenthood, Vullo, and Bernick, alleging claims for wrongful civil proceedings and abuse of process. Defendants removed the action to this court and filed a motion to dismiss and for an injunction.
DISCUSSION
I. Motion to Remand
deParrie contends that this court does not have federal subject matter jurisdiction over the action and seeks to have it remanded to state court.
The party seeking removal has the burden of establishing federal jurisdiction. Westinghouse Elec. Corp. v. Newman Holtzinger, P.C., 992 F.2d 932, 934 (9th Cir. 1993). Courts strictly construe the removal statute against removal jurisdiction. Any doubt as to the right of removal is resolved in favor of remand. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992).
Defendants contend that under the circumstances present here, the All Writs Act, 28 U.S.C. § 1651(a), enables state court litigation to be removed to federal court. The Act allows federal courts to "issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." Other circuit courts have used the All Writs Act as a basis for removal. Although the Ninth Circuit has not been squarely faced with the issue, it has noted in dicta:
Although the All Writs Act does not confer subject matter jurisdiction on the federal courts . . . other circuits have decided that "[a] district court, in exceptional circumstances, may use its All Writs authority to remove an otherwise unremoveable state court case in order to effectuate and prevent the frustration of orders it has previously issued in its exercise of jurisdiction otherwise obtained."
Arco Environmental Remediation v. Department of Health and Environmental Quality, 213 F.3d 1108, 1117 n. 10 (9th Cir. 2000) (citing cases decided since 1993 from the Second, Sixth, Seventh, and Eighth Circuits allowing removal and a case from the Tenth Circuit rejecting removal jurisdiction based on the All Writs Act). For example, the Eighth Circuit held that removal was proper under the All Writs Act in N.A.A.C.P. v. Metropolitan Council, 144 F.3d 1168 (8th Cir.), cert. denied, 525 U.S. 826 (1998). The appellate court held that the district court had ongoing supervisory jurisdiction under a consent decree filed six months earlier in a prior federal action between the Council and some of the plaintiffs concerning the same housing policies and practices. Id. at 1171.
In this action, deParrie alleges four claims for wrongful civil proceedings and four claims for abuse of process concerning the following actions by defendants: (1) continuing proceedings in PP I when they should have known that deParrie could not be personally enjoined outside the agency criteria of Fed.R.Civ.P. 65; (2) questioning deParrie outside the proper scope of a judgment debtor examination concerning PP I judgment debtor ALM; (3) not informing deParrie of a change of time in the execution of a writ by the marshal in PP I; and (4) proceeding against deParrie in a contempt hearing in PP I for storage of ALM equipment at his home.
deParrie contends that this action continuing in state court would have no impact upon this court continuing to interpret or enforce its judgment and injunction entered in PP I. I disagree. All of deParrie's allegations revolve around defendants' actions in obtaining and enforcing the injunction and trying to collect the judgment. Thus, I conclude that removal of this action was allowable to prevent the frustration of those orders entered under jurisdiction obtained and unchallenged in PP I. The motion to remand is denied.
II. Motion to Dismiss
The Anti-Injunction Act provides:
A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.28 U.S.C. § 2283. Defendants rely on the last exception, commonly known as the relitigation exception. The exception applies whenever res judicata would bar relitigation of a claim, namely, claims actually litigated and those that arise from the same transaction which could have been litigated in a prior proceeding. Western Systems, Inc. v. Ulloa, 958 F.2d 864, 868-71 (9th Cir. 1992), cert. denied, 506 U.S. 1050 (1993).
I conclude that deParrie's claims are barred by res judicata because they either were litigated in PP I or could have been litigated there. Specifically, deParrie objected to being named in the injunction. His objection caused the court to file an amended order and permanent injunction which included additional findings of fact and conclusions of law. deParrie also filed an appeal with the Ninth Circuit, which is pending. Prior to the deposition, deParrie moved to quash it but the court denied the motion. Any dispute over the scope of the deposition could have been handled with a motion for a protective order. The court had already ordered, however, that discovery requests for the injunctive segment of the case must be complied with. Concerning the delay in the marshal's execution of the writ, deParrie could have moved the court for sanctions if he believed that the confusion on time, costing him attorney fees, was intentional. Finally, deParrie filed a Rule 11 motion, which the court denied, about being ordered to the contempt hearing. The Rule 11 motion also discussed his deposition and the writ of execution. Consequently, the action should be dismissed with prejudice.
I do not believe, however, that deParrie's conduct is sufficient at this time to require a vexatious litigation order, including one limited to the issues in PP I.
CONCLUSION
deParrie's motion to remand (#27) is denied. Defendants' motion to dismiss (#15-1) is granted and motion for an injunction (#15-2) is denied.
SO ORDERED.