Opinion
CIVIL 1:22-CV-00635
03-28-2023
KENNETH SWENSON, I, et al., Plaintiffs, v. JUDGE CLYDE VEDDER, et al., Defendants.
Wilson Judge
REPORT AND RECOMMENDATION
Susan E. Schwab United States Magistrate Judge
I. Introduction.
The matter before us is yet another foray into the internal familial strife involving the estate and guardianship of one Ella Rubina Card. The tortuous legal history of Ms. Card's guardianship dates back to 2011 and comes close to rivaling Jarndyce v. Jarndyce, the fictional case in Charles Dickens's Bleak House. The instant matter (“the Complaint”) involving Ms. Card, who is now deceased, is brought by her daughters, Cindy Card (“Cindy”) and Ladonna Card (“Ladonna”), and son-in-law, Kenneth Swenson, I (“Swenson”) (collectively “the plaintiffs”). The plaintiffs bring to this court's attention proceedings in the York County Court of Common Pleas, Orphans' Court Division (“York County Orphans' Court”) which, according to the plaintiffs, was rife with violations of federal and state statutes. Currently pending are four motions to dismiss the Complaint. For the reasons set forth below, we recommend that the court grant two of these motions to dismiss and deny the other two motions to dismiss.
II. Background and Procedural History.
Ms. Card had four children: Cindy, Ladonna, Raymond Card (“Raymond”), and Kermit Card (“Kermit”). In the matter of Ella C. (2011 Guardianship Proceeding), 34 Misc.3d 1203 (A), 943 N.Y.S.2d 791, *1 (Sup. Ct. Kings County 2011). In 2011, Ladonna, Raymond, and Kermit “filed an order to show cause and petition pursuant to Article 81 of the [New York State] Mental Hygiene Law for the appointment of a personal and property needs guardian” for Ms. Card. Id. Ms. Card opposed the guardianship-and, in fact, began her own legal proceeding against Ladonna, Raymond, and Kermit-but the Judge who presided over the guardianship matter (“2011 New York Guardianship Proceeding”), Judge Barros, determined that Ms. Card was “an incapacitated person within the meaning of Article 81 of the [New York State] Mental Hygiene Law.” Id. at 1, 5, 6. Accordingly, on December 14, 2011, Judge Barros appointed “a property guardian . . . to establish a monthly budget for Ms. C[ard]'s needs and for support of her dependents, Cindy and Faith, and for her charitable inclinations.” Id. at 6. Judge Barros appointed a nonprofit organization, The Vera Institute of Justice, Inc., as Ms. Card's property guardian. In re Card (2017 Removal Action), Civil Action No. 1:17-cv-01583, 2017 U.S. Dist. LEXIS 155238, at *1 (M.D. Pa. Sept. 21, 2017). Judge Barros did not, however, appoint a personal guardian for Ms. Card because, in the interim between the filing of the petition and the issuance of the decision, Ms. Card moved to Belize “where apparently she [was] managing with the aid of siblings[,]” and because Ms. Card's “and Cindy's vehement opposition to the appointment of a guardian create[d] an environment in which a personal needs guardian would be unable to properly execute his or her duties because access to the [incapacitated person] and her abode would be near impossible.” Id.
Faith is Ms. Card's granddaughter. See generally 2011 Guardianship Proceeding, 34 Misc.3d 1203 (A).
On January 3, 2012, Ms. Card “filed a notice of removal” of the 2011 New York Guardianship Proceeding with the United States District Court for the Eastern District of New York, “claiming that the state court proceeding became removable at some point after its filing because of ‘flagrant United States Constitution violations committed against her.'” In re Card (2012 Removal Action), No. 12-cv-114, 2012 WL 382730, at *1 (E.D.N.Y. Feb. 6, 2012). “More specifically, she claim[ed] her rights under the Fourteenth, Fifth, Sixth, and Seventh Amendments have been violated, in essence, by the prosecution of the guardianship proceeding in state court.” Id. The court concluded that it lacked subject matter jurisdiction, however, because Ms. Card's “offered bases for federal question jurisdiction are merely potential defenses, dressed in constitutional trappings, and thus do not confer jurisdiction.” Id. at *2. The Court thus remanded the guardianship proceeding back to the New York Supreme Court, Kings County. Id. at *3.
In 2014, Ms. Card moved to Pennsylvania. See 2017 Removal Action, 2017 U.S. Dist. LEXIS 155238, at *1. And in 2017, she filed a second removal action of the 2011 New York Guardianship Proceeding, this time in the United States District Court for the Middle District of Pennsylvania. Id. at *1-2. The court considered subject matter jurisdiction sua sponte and concluded that it lacked subject matter jurisdiction. Id. at *6. Ms. Card “asserted that [the court had] subject matter jurisdiction because the amount in controversy exceed[ed] $75,000 and the parties [were at the time of filing] currently citizens of different states[.]” Id. at *4. “But it is well established that, if jurisdiction is alleged to be based on diversity of citizenship, such diversity must exist both at the time of the commencement of the action in state court and at the time of removal to federal court.” Id. (citing Stevens v. Nichols, 130 U.S. 230, 231-32 (1889); Fiorentino v. Huntingside Assoc., 679 F.Supp. 3, 5 (E.D. Pa. 1987); Moser v. Bostich Div. of Testron, Inc., 609 F.Supp. 917, 918-19 (W.D. Pa. 1985)). Because Ms. Card was a citizen of New York when the 2011 New York Guardianship Proceeding was initiated, as described above, the court concluded that it lacked diversity jurisdiction. Id. Further, though Ms. Card “also asserted that [the court had] subject matter jurisdiction under 42 U.S.C. § 1983 because Vera Institute's conduct as [her] court-appointed guardian ha[d] violated her federal civil rights[,]” the court cited the 2012 Removal Proceeding opinion to similarly find that Ms. Card's “offered bases for federal jurisdiction are merely potential defenses, dressed in constitutional trappings,” and, therefore, the court found it also lacked federal question jurisdiction. Id. at 4-5 (citing 2012 Removal Proceeding, 2012 WL 382730, at *2). Accordingly, the Court dismissed the action. Id. at 6.
According to the Complaint, the Vera Institute of Justice, Inc., terminated its guardianship role in July 2020. Doc. 1 at 82-83. The New York Supreme Court, Kings County then appointed Raymond and Kermit co-guardians of Ms. Card's estate on July 21, 2020, in an order (“2020 Guardian Appointment Order”) in an ex parte hearing (“July 2020 Hearing”). Id. at 10-11, 16, 18, 82-83.
On July 22, 2021, Ms. Card, Cindy, Ladonna, and Swenson filed a complaint with the United States District Court for the Middle District of Pennsylvania and, after being ordered to do so, filed an amended complaint on September 15, 2021. Matter of Card (2021 Removal Proceeding), No. 1:21-cv-01288, 2022 WL 1592719, at *1 (M.D. Pa. May 19, 2022). Thereafter, on October 25, 2021, the plaintiffs “filed a notice of removal” of the 2011 New York Guardianship Proceeding in the case, and the court eventually concluded that the “[p]laintiffs seek in essence[,]” for a third time, “to have a New York State guardianship proceeding removed to federal court.” Id. Magistrate Judge Arbuckle issued a Report and Recommendation “constru[ing the p]laintiffs' action as a removal action [and] recommending that it be dismissed sua sponte for lack of subject matter jurisdiction and remanded to the Supreme Court of New York, Kings County.” Id. at *2. The District Judge adopted this Report and Recommendation and referred the case back to Magistrate Judge Arbuckle “for the purposes of deciding” whether injunctive sanctions are appropriate “pursuant to the requirements of Brow v. Farrelly, 994 F.2d 1027, 1038-39 (3d Cir. 1993)[,]” “[g]iven that this is the third frivolous removal attempt by [the p]laintiffs[.]” Id. at 4. This case is still pending. See generally docket No. 1:21-cv-01288.
On February 11, 2022, the matter of Ms. Card's guardianship came before the York County Orphans' Court when Attorney Erik Spurlin (“Attorney Spurlin”), representing Kermit and Raymond, filed a petition (“Orphans' Court Petition”) for hearing and enforcement of the 2020 Guardian Appointment Order. Doc. 1 at 200. The Orphans' Court Petition explained that the New York Supreme Court for Kings County requires Kermit and Raymond, as Ms. Card's court-appointed guardians, “to visit [Ms. Card] not less than four times per year[.]” Id. at 202 (internal quotation marks omitted). Neither Kermit nor Raymond, however, had seen Ms. Card since the 2011 New York Guardianship Proceeding, and “believe[d] and aver[red] that [Ms. Card] was taken out of New York by Cindy [ ], and has harbored her in a house in Hanover, Pennsylvania, owned by a man named Kenneth Swenson, who at times, alleges to be Cindy Card's husband.” Id. at 201. Relying on the authority given them in the 2020 Guardian Appointment Order, Kermit and Raymond sought “assistance . . . to access the Incapacitated Person, [Ms. Card,] wherever she is maintained, to personally visit with her and be able to report to this Court, her health, safety and wishes.” Id. (internal quotations and emphasis omitted).
Accordingly, Kermit and Raymond “request[ed] that [the York County Orphans' Court] schedule a hearing and demand the physical production of [Ms. Card], such that she can be questioned by the attorneys, the guardians, and/or the Court as a means of (i) determining her preferences as to the management of her estate, (ii) ensuring she is safe and not being held against her will, (iii) providing a mechanism for the guardians to meet with [Ms. Card] four times per year in accordance with the existing guardianship order, and (iv) determine[ing] whether [Ms. Card] wishes to and/or should be returned to the State of New York.” Id. at 205. Just five days after the Orphans' Court Petition was filed, on February 16, 2022, according to the Complaint, Ms. Card died in Belize. Id. at 26.
Judge Clyde Vedder (“Judge Vedder”) presided over a hearing on the Orphans' Court Petition on March 21, 2022 (“March 2022 hearing”). Id. at 59. Swenson was subpoenaed to testify at the hearing, but neither Ladonna nor Cindy participated in the hearing. Id. at 29, 31. During this hearing “it was discovered, for the first time, that Ella Rubina Card died on February 16, 2022[,] in Belize City, Belize and [ ] Swenson and Cindy [ ] have been serving as Ms. Card's attorneys-in-fact since at least 2018, despite knowing full well that Ms. Card was found to be incompetent by a New York State Court on December 14, 2011[.]” Id. at 59. That same day, March 21, 2022, Judge Vedder thus issued an order (“Orphans' Court Order”) requiring Swenson and Cindy to “file an account of their administration of Ms. Card's assets and Estate” with the court, and requiring Swenson to provide bank statements to counsel and deliver the assets of the Estate to the appointed representative thereof. Id. at 52, 59-60.
A. Allegations in the Complaint.
A little over a month later, on April 30, 2022, the plaintiffs filed the Complaint, identifying: (1) Judge Vedder; (2) Attorney Spurlin; (3) Brandy G. Hoke, who appeared during the March 2022 hearing on behalf of Ms. Card (“Attorney Hoke”) (see doc. 1 at 59); (4) Julie Stoil Fernandez, a New York attorney who represented Kermit and Raymond in the July 2020 Hearing (“Attorney Fernandez”) (see doc. 1 at 91); (5) Raymond; (6) Kermit; and (7) Finkel & Fernandez, LLP (“Finkel & Fernandez”), Attorney Fernandez's law firm (doc. 1 at 78). Id. The following facts are taken from the Complaint.
For clarity, we set out in this section only those allegations that directly relate to the instant case and omit the “background” which the plaintiffs included in the 54-page Complaint. See generally doc. 1.
According to the plaintiffs, the Orphans' Court Petition was full of “unsubstantiated and scurrilous allegations” which Attorney Fernandez “fed” to Attorney Spurlin. Id. at 13. Moreover, per the plaintiffs, the Orphans' Court Petition should have never been filed because the “Pennsylvania Middle Court [had] jurisdiction over the case since July of 2021” (id. at 13), and the York County Orphans' Court did not have jurisdiction over the matter due to Ladonna and Cindy's residency in New York (id. at 3). Further, the Orphans' Court Petition “contained false and misleading information which was presented to the court as fact[.]” Id. at 15. Attorney Fernandez, the plaintiffs allege, knew these allegations to be false and, therefore, both she and Attorney Spurlin “should be dis-barred[.]” Id. at 26. And, according to the plaintiffs, Attorney Spurlin had no “authority” to bring the matter to the York County Orphans' Court because the allegations in the Orphans' Court Petition were “inconsistent with [the] truth[.]” Id. at 38.
The plaintiffs include in the Complaint 10 pages in which they summarize the assertions in the petition and reply to each assertion by defending their actions and thought processes. Id. at 17-27.
The plaintiffs further allege that the March 2022 hearing was “unnecessary.” Id. at 13. According to the plaintiffs, the hearing was “a rouse [sic.]” held to “further advance a false narrative initiated by [Attorney] Fernandez, regurgitated by [Attorney] Spurlin, bought into by [Attorney] Hoke, orchestrated and acted upon by Judge Vedder.” Id. at 15, 37. “The March 21, 2022 hearing intent was to obtain a ruling of against [sic.] [Ms. Card] by deeming her ‘incapacitated' without the advent of advancing an expert witness.” Id. at 36. Swenson was subpoenaed to testify and hired counsel for the hearing. Id. at 6, 29.
Swenson's counsel requested, and the court granted, an in camera session prior to the March 2022 hearing. Id. The plaintiffs later refer to this in camera session as evidence of conspiracy. Id. at 32. After this session, Swenson was informed that neither he, nor his attorney, had standing and, therefore, Swenson's attorney could not participate in the March 2022 hearing. Id. at 2. In this way, Judge Vedder “denied him representation of his choice” (id. at 6, 40-41, 42), “the lower court” deprived Swenson of his right to counsel (id. at 30), and Swenson's “attorney's performance was deficient because of the abject nature of a natural relationship between judge and counsel in lower court settings” (id. at 41). Accordingly, the plaintiffs allege a violation of their Sixth Amendment rights. Id. at 53.
Per the Complaint, when the March 2022 hearing began, Swenson was required to testify, though he was not read his rights. Id. at 3, 13, 30-31, 32. In addition to permitting Attorney Spurlin and Attorney Hoke to question Swenson,Judge Vedder questioned him on the stand in a “humiliating, intimidating, and threatening manner.” Id. at 3. Judge Vedder “pummeled Swenson with questions derived from” Attorney Spurlin's petition, and “clearly insinuat[ed] [Swenson] was lying, only to create a prejudicial courtroom atmosphere[.]” Id. at 13.
The plaintiffs point out that Swenson's own attorney was not permitted to question him. Id. at 6.
Judge Vedder's line of questioning, demeanor, theatrical facial contortions and ex parte out of court-room discussions with the officers of the court conveyed not only his failure to execute any degree of adherence to Canon 1 of the Pennsylvania Code of Judicial Conduct, . . . but also squared with his prejudicial and unconstitutional treatment of the Plaintiff Kenneth Swenson.Id. at 35. The plaintiffs also complain that Judge Vedder “let” a New York attorney in the hearing, as well as “entertained additional allegations presented by” Attorney Fernandez, although she is a New York attorney who had not been admitted pro hac vice. Id. at 3, 14.
The plaintiffs also complain of what was missing from the hearing. For example, Judge Vedder failed to ask for expert evidence about Ms. Card's cognitive abilities, though such testimony is required by state statute for the appointment of a guardian. Id. at 14. Instead, Judge Vedder relied on “hearsay.” Id. Further, Attorney Fernandez knew of evaluations which concluded that Ms. Card was mentally acute, but she did not present these evaluations to the court. Id. at 15. Similarly, Attorney Fernandez, Kermit, and Raymond all knew that medical evaluations would help the court to decide the guardianship issue, but they “intentionally omitted” that information. Id. at 33. “The defendants” also lied about the existence of Ms. Card's will. Id. at 5. And Attorney Spurlin, Attorney Hoke, and Judge Vedder “failed to inspect” case records. Id. at 38.
The plaintiffs further allege that Judge Vedder, Attorney Spurlin, Attorney Fernandez, Raymond, Kermit, and Attorney Hoke “colluded to interfere with Plaintiffs['] civil rights[,]” and “perpetrated fraud on the court by injecting, knowingly allowing, promoting, acting upon deceitful misrepresentations, unsupported allegations, and false information into the judicial process.” Id. at 34, 39 (errors in original). And Judge Vedder “stated no compelling state interest in stripping Kenneth Swenson of due process.” Id. at 43.
B. Injury, Claims, and Relief.
The plaintiffs state that the Orphans' Court Order is “void.” Id. at 29, 30, 31, 38, 39. As described above, the Orphans' Court requires Swenson and Cindy to file with the court “an account of their administration of Ms. Card's assets and Estate” and further orders Swenson to provide bank statements to counsel and deliver the assets of the Estate to the appointed representative. Id. at 59-60. The plaintiffs list several reasons why we should overturn the judgment and find it void, including violations of 42 U.S.C. § 1983 (Id. at 31), violation of the supremacy clause (Id. at 38), fraud on the court pursuant to Fed.R.Civ.P. 60(b)(3) (Id. at 36), and a violation of criminal statute 18 U.S.C. § 242 (Id. at 30). The plaintiffs describe their injury thusly:
The plaintiffs only describe alleged injuries Swenson and Cindy suffered from the March 2022 hearing. It is unclear what injury LaDonna is alleging she suffered at the hands of these defendants. “Injury in fact is a constitutional requirement, and ‘[i]t is settled that Congress cannot erase Article III's standing requirements by statutorily granting the right to sue to a plaintiff who would not otherwise have standing.'” Spokeo, Inc. v. Robins, 578 U.S. 330, 339 (2016). “To establish injury in fact, a plaintiff must show that he or she suffered ‘an invasion of a legally protected interest' that is ‘concrete and particularized' and ‘actual or imminent, not conjectural or hypothetical.'” Id. (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). Construing the Complaint broadly, however, as required for complaints filed pro se, we do not recommend dismissing LaDonna's claims for lack of standing at this early stage without briefing on this issue.
The fact that the Plaintiff [sic.] is now required to spend endless hours defending his name and personal integrity preparing this petition to set before this court because the injury and his challenged conduct has not resulted ‘. . . from the independent action of some third party not before the court . . .', but in fact a direct result of the action by the lower court.Id. at 35. Further, Swenson and Cindy describe themselves as “collateral damage in the March 21, 2022 hearing.” Id. at 36. “Their livelihood, their family's future as well as those that may follow with the lower courts' mis-steps and trampling of a citizen's [ ] constitutional and God[-]given rights are in jeopardy if the lower court's ruling stands.” Id.
The plaintiffs ask us to
ensure this case remains in [our] jurisdiction for the following reasons: 1.) [sic.] To avoid any actual or perceived conflict of interest as set forth herein as the Defendants are involved in a Racketeering Enterprise. 2) Plaintiffs could not get a fair hearing in the York County Orphans['] court due to alleged judicial corruption and United States Constitutional rights violations further enunciated within this petition, as directed at and acted upon by officers of the lower Orphans['] Court and clear compromise of Pennsylvania's Code of Judicial Conduct by Judge [ ] Vedder and attending Officers of the court (Defendants).Id. at 5-6. The plaintiffs are further concerned “that any further proceedings emanating from, within or taken by this court in this instance toward the plaintiffs, would result in further depriving the plaintiffs of their substantial rights.” Id. at 43.
Presumably, the plaintiffs refer to the York County Orphans' Court.
The plaintiffs include claims throughout the body of the Complaint, as well as “additional claims” against each defendant. See generally id.; Id. At 53-54. Following a liberal construction of the Complaint, the plaintiffs bring the following claims against each defendant:
(1) Against Judge Vedder, the plaintiffs allege violations of 42 U.S.C. §§ 1983, 1985, and 1986; 18 U.S.C. § 242; “mandatory remedy for lack of jurisdiction”; fraud on the court pursuant to Fed. R. Civ. P.
60(b)(3); manifest injustice; various rules of judicial conduct; elder abuse including the death of Ms. Card; and “committed fraud on the court.” Doc. 17 at 2, 15, 27, 29, 30, 31, 34, 36, 40, 42, 43, 45, 53-54.
(2) Against Attorney Spurlin, the plaintiffs allege violations of 42 U.S.C. §§ 1983, 1985, and 1986; fraud on the court pursuant to Fed.R.Civ.P. 60(b)(3); elder abuse including the death of Ms. Card; “committed fraud on the court”; “falsely accused plaintiff of federal crimes”; and failing to conduct a reasonable investigation into the allegations brought to the York County Orphans' Court. Doc. 17 at 2, 15, 27, 29, 30, 31, 34, 36, 40, 42, 43, 45, 53-54.
(3) Against Attorney Fernandez, the plaintiffs allege violations of 42 U.S.C. §§ 1983, 1985, and 1986; state guardianship laws; elder abuse including the death of Ms. Card; “falsely accused plaintiff of federal crimes”; failing to conduct a reasonable investigation into the allegations brought to the York County Orphans' Court; falsely representing herself as Ms. Card's counsel; and willfully suppressing evidence. Doc. 17 at 2, 15, 27, 29, 30, 31, 34, 36, 40, 42, 43, 45, 5354.
(4) Against Finkel & Fernandez, LLP, the plaintiffs allege violations of 42 U.S.C. §§ 1985 and 1986; state guardianship laws; and fraud on the court pursuant to Fed.R.Civ.P. 60(b)(3). Doc. 17 at 2, 15, 27, 29, 30, 31, 34, 36, 40, 42, 43, 45, 53-54.
(5) Against Raymond, the plaintiffs allege violations of 42 U.S.C. §§ 1983, 1985, 1986; state guardianship laws; fraud on the court pursuant to Fed.R.Civ.P. 60(b)(3); elder abuse including the death of
Ms. Card; and willfully suppressing evidence. Doc. 17 at 2, 15, 27, 29, 30, 31, 34, 36, 40, 42, 43, 45, 53-54.
(6) Against Kermit, the plaintiffs allege violations of 42 U.S.C. §§ 1983, 1985, and 1986; state guardianship laws; fraud on the court pursuant to Fed.R.Civ.P. 60(b)(3); elder abuse including the death of Ms. Card; willfully suppressing evidence; and kidnapping. Doc. 17 at 2, 15, 27, 29, 30, 31, 34, 36, 40, 42, 43, 45, 53-54.
(7) Against Brandy Hoke, the plaintiffs allege violations of 42 U.S.C. §§ 1985 and 1986; and fraud on the court pursuant to Fed.R.Civ.P. 60(b)(3). Doc. 17 at 2, 15, 27, 29, 30, 31, 34, 36, 40, 42, 43, 45, 5354.
42 U.S.C. § 1983 creates a private right of action for violations of federal rights. The plaintiffs specifically allege that Judge Vedder violated the plaintiffs' First, Fourth, Fifth, Sixth, Seventh, Eighth, and Fourteenth Amendment rights.
The plaintiffs specifically allege that Attorney Spurlin violated the plaintiffs' Fourth Amendment rights, specifically the right to be free from “malicious prosecution.” Id. at 27.
The plaintiffs specifically allege that Attorney Fernandez violated the plaintiffs' Fourth Amendment rights, specifically the right to be free from “malicious prosecution.” Id. at 27.
The plaintiffs specifically allege that Raymond violated the plaintiffs' Fourth Amendment rights, specifically the right to be free from “malicious prosecution.” Id. at 27.
The plaintiffs specifically allege that Kermit violated the plaintiffs' Fourth Amendment rights, specifically the right to be free from “malicious prosecution.” Id. at 27.
For relief, the plaintiffs first and foremost seek the voiding of the Orphans' Court Order. Id. at 52, 59-60. Additionally, the plaintiffs seek: (1) the recusal of Judge Vedder from “this instance or [ ] any [involving] named Plaintiffs”; (2) a court order requiring Raymond and Kermit to produce certain accountings; (3) the issuance of a “Preliminary Injunction and Temporary Restraining Order on” Attorney Fernandez, Attorney Spurlin, Attorney Hoke, Raymond, and Kermit “related to all activity associated with the Estate of Ella Card”; (4) a finding that the Orphans' Court Order is void; (5) a finding that the appointment of Kermit and Raymond as property guardians to Ms. Card is also void; (6) an order requiring Raymond and Kermit to “produce the transitional accounting to” Cindy; (7) an order mandating the “immediate[ ] release of [ ] Ella Card's assets and estate to [Cindy] in accordance with the Will and Irrevocable Trust of [ ] Ella Card”; (8) $500 million in damages for “pain, suffering, incessant torment, malicious prosecution, unlawful[ ] [imprisonment], degradation of quality of life, wrongful death, defamation of character, excessive cruel and unusual punishment, [and] extortion”; and (9) “Julie Fernandez sanctioned Cocoran Group/co-guardians cease collecting rent from 161 Saratoga, reimburse all rent collected thereunder and returned to the executor of the Estate, Cindy [ ] with said lease terminated.” Id. at 52 (footnote omitted).
C. Motions to Dismiss.
Kermit, Raymond, Attorney Fernandez, and Finkel & Fernandez jointly filed a motion to dismiss the Complaint (doc. 11) and a brief in support of this motion (doc. 14); the plaintiffs filed a brief in opposition of this motion (doc. 15). Judge Vedder also filed a motion to dismiss the Complaint (doc. 12) and a brief in support of this motion (doc. 17); the plaintiffs filed a brief in opposition of this motion (doc. 18). Attorney Spurlin likewise filed a motion to dismiss the Complaint (doc. 13) and a brief in support of this motion (doc. 19). The plaintiffs filed a brief in opposition to this motion. Doc. 16.
To the extent that the plaintiffs attempt to introduce new claims or allegations through the submission of their brief in opposition, such attempts shall be disregarded. It is axiomatic that a complaint cannot be amended through a brief. See Pennsylvania ex rel. Zimmerman v. Pepsico, Inc., 836 F.2d 173 (3d Cir. 1988).
Again, to the extent that the plaintiffs attempt to introduce new claims or factual allegations through their brief in opposition, such attempts shall be disregarded. See note 12 supra.
The plaintiffs filed their brief in opposition prior to the docketing of the brief in support. See docket generally. Because the plaintiffs have had significant time to respond to the brief in support, docketed on June 7, 2022, we will consider the brief in opposition despite this procedural misstep.
On August 3, 2022, Attorney Hoke filed a motion to dismiss. Doc. 28. On August 13, 2022, the plaintiffs filed a request for entry of default judgment against Attorney Hoke. Doc. 29. The plaintiffs base this request on the purported date of service of the complaint, May 3, 2022, and the lack of a responsive pleading within 21 days of service. Id. Attorney Hoke, however, argues that service was never properly made because the Certificate of Service reflects only that the plaintiffs sent mail to Attorney Hoke and service by mail is improper in this case. Doc. 34 at 2. The plaintiffs filed a Certificate of Service which appears to be a photograph of an envelope or package sent via express mail via the United States Postal Service to a Brandy G. Hoke. Doc. 8. The Federal Rules of Civil Procedure, however, permit service on an individual in a judicial district of the United States via four defined methods: (1) “delivering a copy of the summons and of the complaint to the individual personally;” (2) “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;” (3) “delivering a copy of each to an agent authorized by appointment or by law to receive service of process”; or (4) “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[.]” Fed.R.Civ.P. 4(e). Certified mail thus will only be proper if it is proper under Pennsylvania law for serving a complaint on an individual. Pennsylvania provides that process may be served only by handing a copy to the defendant or to certain persons at the defendant's residence or his usual place of business. 231 Pa. Code § 402. In Pennsylvania, service by mail is only proper in certain instances, none of which apply here. 231 Pa. Code § 403. It appears that the plaintiffs, therefore, failed to properly serve Attorney Hoke. We, therefore, consider Attorney Hoke's motion to dismiss (doc. 28) and her brief in support (doc. 33).
The plaintiffs filed a document they titled an “affidavit in opposition” of Attorney Hoke's motion to dismiss. Doc. 36. However, the document itself is, in reality, a brief in reply to Attorney Hoke's brief in opposition to the plaintiffs' request for entry of default judgment. Id. The plaintiffs did not file a true brief in opposition of Attorney Hoke's motion to dismiss. See docket generally. However, we find that the plaintiffs were clearly aware of the requirement to file a brief in opposition of Attorney Hoke's motion to dismiss (doc. 35) and are not prejudiced by the consideration of the motion to dismiss without a brief in opposition.
III. Pleading and Motion-to-Dismiss Standards.
All four of the motions to dismiss argue that the plaintiffs' claims should be dismissed pursuant to the Rooker-Feldman doctrine under Fed.R.Civ.P. 12(b)(1). Some of the motions to dismiss further argue for dismissal of the Complaint for failure to state a claim under Fed.R.Civ.P. 12(b)(6). We set forth the standards that apply to each type of motion.
A. Rule 12(b)(1) Standards.
Rule 12(b)(1) permits the dismissal of an action for lack of subject-matter jurisdiction. Challenges to subject-matter jurisdiction under Fed.R.Civ.P. 12(b)(1) may be “facial” or “factual.” Papp v. Fore-Kast Sales Co., 842 F.3d 805, 811 (3d Cir. 2016). A facial attack contests the sufficiency of the pleadings. Id. When there is a facial attack, “we apply the same standard as on review of a motion to dismiss under Rule 12(b)(6).” In re Horizon Healthcare Servs. Inc. Data Breach Litig., 846 F.3d 625,633 (3d Cir. 2017). “In contrast to a facial challenge, a factual challenge allows ‘a court [to] weigh and consider evidence outside the pleadings.'” Davis v. Wells Fargo, 824 F.3d 333, 346 (3d Cir. 2016) (quoting Constitution Party of Pennsylvania v. Aichele, 757 F.3d 347, 358 (3d Cir. 2014)). The plaintiff has the burden of persuading the court it has jurisdiction. Id.
B. Rule 12(b)(6) Standards.
In accordance with Fed.R.Civ.P. 12(b)(6), the court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” When reviewing a motion to dismiss under Rule 12(b)(6) “[w]e must accept all factual allegations in the complaint as true, construe the complaint in the light favorable to the plaintiff, and ultimately determine whether [the] plaintiff may be entitled to relief under any reasonable reading of the complaint.” Mayer v. Belichick, 605 F.3d 223, 229 (3d Cir. 2010). In making that determination, we “consider only the complaint, exhibits attached to the complaint, matters of public record, as well as undisputedly authentic documents if the [plaintiff's] claims are based upon these documents.” Id. at 230.
“A Rule 12(b)(6) motion tests the sufficiency of the complaint against the pleading requirements of Rule 8(a).” I.H. ex rel. D.S. v. Cumberland Valley Sch. Dist., 842 F.Supp.2d 762, 769-70 (M.D. Pa. 2012). “Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a ‘short and plain statement of the claim showing that the pleader is entitled to relief.'” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (quoting Fed.R.Civ.P. 8(a)(2)). The statement required by Rule 8(a)(2) must give the defendant fair notice of the nature of the plaintiff's claim and of the grounds upon which the claim rests. Erickson v. Pardus, 551 U.S. 89, 93 (2007). Detailed factual allegations are not required, but more is required than “labels,” “conclusions,” or “a formulaic recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “In other words, a complaint must do more than allege the plaintiff's entitlement to relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009). “A complaint has to ‘show' such an entitlement with its facts.” Id.
In considering whether a complaint fails to state a claim upon which relief can be granted, the court “‘must accept all facts alleged in the complaint as true and construe the complaint in the light most favorable to the nonmoving party.'” Krieger v. Bank of Am., N.A., 890 F.3d 429, 437 (3d Cir. 2018) (quoting Flora v. Cty. Of Luzerne, 776 F.3d 169, 175 (3d Cir. 2015)). But a court “need not credit a complaint's bald assertions or legal conclusions when deciding a motion to dismiss.” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). A court also need not “assume that a . . . plaintiff can prove facts that the . . . plaintiff has not alleged.” Associated Gen. Contractors of Cal. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983).
Following Twombly and Iqbal, a well-pleaded complaint must contain more than mere legal labels and conclusions. Rather, it must recite factual allegations sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation. In practice, consideration of the legal sufficiency of a complaint entails a three-step analysis:
First, the court must “tak[e] note of the elements a plaintiff must plead to state a claim.” Second, the court should identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth.” Finally, “where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.”Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (footnote and citations omitted) (quoting Iqbal, 556 U.S. at 675, 679).
A complaint filed by a pro se litigant is to be liberally construed and “‘however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'” Erickson, 551 U.S. at 94 (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Nevertheless, “pro se litigants still must allege sufficient facts in their complaints to support a claim.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013).
IV. Discussion.
Each of the defendants argue that the Rooker-Feldman doctrine should be applied to the Complaint to dismiss the case as an effort to appeal the rulings of a state court to a district court. See docs. 11-14, 17, 19, 28, 33. The plaintiffs argue in their briefs in opposition that Rooker-Feldman “does not apply due to the Fraud Exception rule and Void Orders.” Doc. 15 at 11; see also docs. 16, 18.
Though adopted in other circuits, the United States Court of Appeals for the Third Circuit has not clearly adopted the fraud exception to the Rooker-Feldman doctrine.
In Campbell v. Tabas, a Pennslvania district court recently conducted a painstaking examination of Third Circuit caselaw in an attempt to determine whether ‘there is a fraud exception to the Rooker-Feldman doctrine.' The court began its analysis by noting that the fraud exception had been recognized in the Sixth and Ninth Circuits, but rejected by the Courts of Appeals for the Second, Fifth, Seventh, Eighth, Tenth, and Eleventh Circuits. It then turned its attention to the Third Circuit's jurisprudence: ‘The Court of Appeals for the Third Circuit has not definitively weighed in on this debate, though it has discussed the exception in dicta and in nonprecedential opinions.... When it has applied the exception, it has done so in non-precedential opinions, and inconsistently....' Campbell ultimately concluded that the balance of opinions issued by the Court of Appeals and district courts within this Circuit tilted against the application of the fraud exception.
Our own research reveals that, while the Third Circuit has discussed the exception in favorable terms on occasion, the Court has also cautioned against attempts to ‘evade Rooker-Feldman' by smuggling a straight-forward attack on a state court judgment under the guise of a fraud claim.Van Tassel v. MidFirst Bank, Civil Action No. 1:17-cv-0275, 2018 WL 5650038, at *5 (W.D. Pa. Sept. 4, 2018). We agree with the U.S. District Court for the Western District of Pennsylvania's summation of the status of the “fraud exception” in the Third Circuit and find that it is not adopted in this circuit. Accordingly, we will not further address the plaintiffs' argument that a fraud exception excludes the application of the Rooker-Feldman doctrine in this case.
Judge Vedder further argues that any claims against him in his official capacity must be dismissed because he is entitled to Eleventh Amendment immunity and any claims against him in his individual capacity must be dismissed because he is entitled to absolute immunity. Doc. 17 at 2-9. The plaintiffs argue that Judge Vedder “had no jurisdiction over Mr. Swenson” and “clearly committed numerous plain errors[.]” Id. at 4-6. Judge Vedder also argues that any claims seeking injunctive relief under 42 U.S.C. § 1983 must be dismissed pursuant to the Federal Courts Improvement Act. Id. at 9-10. The plaintiffs do not address this argument in their brief in opposition. Doc. 18.
Attorney Hoke additionally argues that the Complaint fails to state a claim against her upon which relief can be granted. Doc. 33 at 9. Specifically, Attorney Hoke argues that the claims “are founded upon the conclusion that she engaged with other defendants in a conspiracy against” the plaintiffs, and that the plaintiffs failed to plead facts in support of these allegations. Id.
We address each of these arguments in turn. We address the Rooker-Feldman argument first because “[a] finding that Rooker-Feldman bars a litigant's federal claims divests a District Court of subject matter jurisdiction over those claims.” Desi's Pizza, Inc. v. City of Wilkes-Barre, 321 F.3d 411, 419 (3d Cir. 2003). And “[f]ederal courts must determine that they have jurisdiction before proceeding to the merits.” Lance v. Coffman, 549 U.S. 437, 439 (2007).
A. Rooker-Feldman Doctrine.
Section 1257 of Title 28 of the United States Code confers on the United States Supreme Court appellate jurisdiction to review final judgments of the states' highest courts. Congress has not, however, “conferred a similar power of review on the United States District Courts[.]” Desi's Pizza, Inc. v. City of Wilkes-Barre, 321 F.3d 411, 419 (3d Cir. 2003). “The Rooker-Feldman doctrine prevents district courts from mistakenly relying on their original jurisdiction to engage in appellate review of state-court orders.” Merritts v. Richards, No. 19-1335, 2023 WL 2532055, at *5 (3d Cir. 2023) (precedential). “But th[e Supreme] Court has repeatedly emphasized that the doctrine is a narrow one that defeats federal subject-matter jurisdiction only under limited circumstances.” Vuyanich v. Smithton Borough, 5 F.4th 379, 382 (3d Cir. 2021). “And [the Third Circuit has set forth] a precise four-pronged inquiry for when Rooker-Feldman should be invoked.” Id. The Rooker-Feldman doctrine applies when: “(1) the federal plaintiff lost in state court; (2) the plaintiff complain[s] of injuries caused by [the] state-court judgments; (3) those judgments were rendered before the federal suit was filed; and (4) the plaintiff is inviting the district court to review and reject the state judgments.” Great Western Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 166 (3d Cir. 2010) (internal quotation marks omitted) (quoting Exxon Mobile, 544 U.S. at 284). “When even one of the four prongs is not satisfied, it is not proper to dismiss on Rooker-Feldman grounds.” Vuyanich, 5 F.4th at 382.
The Supreme Court has made clear that Rooker-Feldman “does not defeat jurisdiction ‘simply because a party attempts to litigate in federal court a matter previously litigated in state court' or even presents a claim that ‘denies a legal conclusion' a state court has reached.” Id. at 384. Rather, the Rooker-Feldman doctrine applies only when “the federal plaintiff lost in state court[.]” Great Western Mining & Mineral Co., 615 F.3d at 166. “[A]s a general rule, the federal plaintiff must be a party to such a state-court proceeding and have received an adverse ruling.” Merritts, 2023 WL 2532055, at *5. The Third Circuit case, R.S. v. Butler County, 700 Fed.Appx. 105 (3d Cir. 2017), illuminates this principal. In this case, after R.S., a minor child, was ordered detained for “five days in a juvenile detention facility[,]” R.S. and his parents sued those involved in this detention. Id. at 107. “On Rooker-Feldman's first requirement, [the Court found] that the child lost in state court.” Id. at 108. The child's parents, however, “were not parties to the child's juvenile case.” Id. Accordingly, the Court found that “Rooker-Feldman does not apply to the parents' claims, as the parents did not lose in state court.” Id.
Similarly, in the instant case, the plaintiffs were not parties to the March 2022 hearing. In fact, the Judge informed Swenson that he did not have standing in the proceedings and instead was only present as a witness. See, e.g., id. at 6-7. These non-party plaintiffs are thus not “state court losers” unless an exception applies. See Merritts, 2023 WL 2532055, at *6 (“But in limited instances, a nonparty to the state-court judicial proceeding may be a state-court loser for purposes of Rooker-Feldman.”). The defendants fail to argue that any exceptions apply to this case. And as presently presented to the court, it does not appear that any exception applies. See id. (describing exceptions for subpoena litigation, successor liability, privity, and in rem actions). We, therefore, conclude that the Rooker-Feldman does not apply and will not recommend that the court dismiss the claims on this basis.
B. Judge Vedder's Entitlement to Immunity.
The plaintiffs bring their claims against Judge Vedder in his official capacity. See doc. 1 at 1 (identifying in the caption “Judge Clyde Vedder In Official Capacity”). Official-capacity suits are “only another way of pleading an action against an entity of which an officer is an agent.” Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690 n.55 (1978). In an official-capacity suit, the real party in interest is the entity of which the officer is an agent, in this case, the York County Court of Common Pleas, a state entity entitled to Eleventh Amendment immunity. See Kentucky v. Graham, 473 U.S. 159, 166 (1985)
Judge Vedder argues that he is entitled to immunity from claims brought against him in his individual capacity. Doc. 17. More specifically, he argues that he has absolute immunity from all individual-capacity claims for damages (Id. at 6-9) and that the Federal Courts Improvement Act shields him from individualcapacity claims seeking injunctive relief (Id. at 9-10). Be that as it may, because the plaintiffs explicitly bring their claims against Judge Vedder in his official capacity (doc. 1 at 1), we will not further address these arguments.
“Our federalist system of government accords respect for the sovereignty of the States in a variety of ways, including the Eleventh Amendment to the United States Constitution, which immunizes States from suits brought in federal court by both their own citizens and citizens of other States.” Maliandi v. Montclair State Univ., 845 F.3d 77, 81 (3d Cir. 2016). It has been observed that “the Eleventh Amendment is a jurisdictional bar which deprives federal courts of subject matter jurisdiction.” Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 693 n.2 (3d Cir. 1996); see also Christ the King Manor, Inc. v. Sec'y U.S. Dep't of Health & Human Servs., 730 F.3d 291, 318 (3d Cir. 2013) (“Therefore unless Congress has ‘specifically abrogated' the states' sovereign immunity or a state has unequivocally consented to suit in federal court, we lack jurisdiction to grant relief in such cases.”); but see Lombardo v. Pennsylvania, Dep't of Pub. Welfare, 540 F.3d 190, 197 (3d Cir. 2008) (noting that “the Supreme Court's jurisprudence has not been entirely consistent in the view that the Eleventh Amendment restricts subject matter jurisdiction”).
The Eleventh Amendment provides:
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
U.S. Const. Amend. XI. Although its text appears to restrict only the Article III diversity jurisdiction of the federal courts, the Eleventh Amendment has been interpreted “‘to stand not so much for what it says, but for the presupposition . . . which it confirms.'” Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54 (1996) (quoting Blatchford v. Native Village of Noatak, 501 U.S. 775, 779 (1991)). That presupposition is that each state is a sovereign entity in our federal system and it is inherent in the nature of sovereignty that a sovereign is not amenable to suit unless it consents. Id.
“Immunity from suit in federal court under the Eleventh Amendment is designed to preserve the delicate and ‘proper balance between the supremacy of federal law and the separate sovereignty of the States.'” Karns v. Shanahan, 879 F.3d 504, 512 (3d Cir. 2018) (quoting Alden v. Maine, 527 U.S. 706, 757 (1999)). It “serves two fundamental imperatives: safeguarding the dignity of the states and ensuring their financial solvency.” Id. Thus, “the Constitution does not provide for federal jurisdiction over suits against nonconsenting States.” Kimel v. Florida Bd. of Regents, 528 U.S. 62, 73 (2000).
There are two circumstances when the Eleventh Amendment does not bar a suit against a state or state agency. A state may waive its Eleventh Amendment immunity by consenting to suit, and Congress may abrogate states' Eleventh Amendment immunity when it unequivocally intends to do so and it acts pursuant to a valid grant of constitutional authority. College Savings Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670 (1999). In this case, the Commonwealth has not waived its Eleventh Amendment immunity, see 42 P.C.S.A. § 8521(b), and no cited federal statute overrides a state's Eleventh Amendment immunity. See, e.g., Mayercheck v. Judges of the Pennsylvania Supreme Court, 2009 WL 2524755 at *10 (M.D. Pa. Aug. 17, 2009) (“[T]he Supreme Court of the United States has held that the Civil Rights Act does not abrogate a state's immunity under the 11th Amendment, insofar as states and their agencies are not ‘persons' subject to suit within the meaning of the Act.”) (citing Howlett v. Rose, 496 U.S. 356, 377 (1990); Will v. Michigan Department of State Police, 491 U.S. 58, 65-66 (1989); Quern v. Jordan, 440 U.S. 332, 343-44 (1979); Monell v. New York City Dept. of Social Services, 436 U.S. 658, 663 (1978)). Further, “[t]he Eleventh Amendment's protection . . . is not limited to the States alone, but rather extends to entities that function as ‘arms of the State.'” Maliandi, 845 F.3d at 81.
“All courts and agencies of the unified judicial system . . . are part of ‘Commonwealth government' and thus are state rather than local agencies.” Callahan v. City of Philadelphia, 207 F.3d 668, 672 (3d Cir. 2000) (citing Pa. Const. art. V, § 6(c); 42 Pa. Const. Stat. Ann. § 102; 42 Pa. Cons. Stat. § 301). Because Judge Vedder is part of the unified judicial system, which is a Commonwealth entity, the claims against him are really claims against the Commonwealth and, as such, are barred by the Eleventh Amendment. See Benn v. First Judicial Dist. Of Pa., 426 F.3d 233, 241 (3d Cir. 2005) (“The Pennsylvania constitution envisions a unified state judicial system, of which the Judicial District is an integral component. From a holistic analysis of the Judicial District's relationship with the state, it is undeniable that Pennsylvania is the real party in interest in Benn's suit and would be subjected to both indignity and an impermissible risk of legal liability if the suit were allowed to proceed.”); see also Haybarger v. Lawrence Cty. Adult Prob. & Parole, 551 F.3d 193, 198 (3d Cir. 2008) (concluding that “as an arm of the State, an individual judicial district and its probation and parole department are entitled to Eleventh Amendment immunity,” but holding that in that case, the Eleventh Amendment was waived by acceptance of federal funds under the Rehabilitation Act).
Accordingly, because the plaintiffs' claims against Judge Vedder are, in fact, claims against the York County Court of Common Pleas, a state entity, and because state entities are entitled to Eleventh Amendment immunity on such claims, we recommend that the court grant Judge Vedder's motion to dismiss.
C. Conspiracy Claims Against Attorney Hoke.
The plaintiffs bring claims against Attorney Hoke for violations of 42 U.S.C. §§ 1985 and 1986 as well as Fed.R.Civ.P. 60(b)(3). Attorney Hoke argues that the plaintiffs fail to allege facts that state any claim against her. Doc. 33 at 9. We address each of the claims in turn.
Fed. R. Civ. P. 60(b)(3), however, like all Federal Rules of Civil Procedure “govern the procedure in all civil actions and proceedings in the United States district courts[.]” Fed.R.Civ.P. 1 (emphasis added). As the plaintiffs are alleging fraud during a state court proceeding, separate from the current federal proceeding, this rule does not apply.
42 U.S.C. § 1985 contains three subparts. Neither 42 U.S.C. § 1985(1), which deals with preventing an officer from performing his or her duties, nor the first part of 42 U.S.C. § 1985(2), which deals with intimidation of parties, witnesses, or jurors, are relevant here. The second part of § 1985(2), which “applies to conspiracies to obstruct the course of justice in state courts,” Kush v. Rutledge, 460 U.S. 719, 725 (1983), is potentially relevant in this case, but that part of § 1985(2) is limited to conspiracies based on racial or some other classbased invidiously discriminatory animus. Davis v. Twp. of Hillside, 190 F.3d 167, 171 (3d Cir. 1999). 42 U.S.C. § 1985(3) “permits an action to be brought by one injured by a conspiracy formed ‘for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws.'” Farber v. City of Paterson, 440 F.3d 131, 134 (3d Cir. 2006) (quoting § 1985(3)). Section 1985(3) is also limited to conspiracies based on racial or some other class-based invidiously discriminatory animus. Griffin v. Breckenridge, 403 U.S. 88, 102 (1971).
Here, the plaintiffs fail to allege actions on the part of Attorney Hoke that amount to a claim upon which relief can be granted. The plaintiffs instead include only three factual allegations against Attorney Hoke: (1) that she asked questions of Swenson during the March 2022 hearing (doc. 1 at 14), (2) that she “bought into” or “adopted” a false “narrative” (doc. 1 at 15, 32, 41), and (3) that she “failed to inspect the records of the case” (doc. 1 at 38). Further, because the plaintiffs have not alleged a racial or other class-based discriminatory animus, and because they have not set forth allegations from which a conspiracy on the part of Attorney Hoke can reasonably be inferred, any claims under 42 U.S.C. § 1985(2) and (3) are without merit.
The plaintiffs also cite to 42 U.S.C. § 1986, which provides a cause of action for failing to prevent a conspiracy under Section 1985. “Section 1986, therefore, is derivative of section 1985.” Dennison v. PA Dept. of Corrections, 268 F.Supp.2d 387, 402 n.10 (M.D. Pa. 2003). Accordingly, since the Complaint fails to state a § 1985 claim upon which relief can be granted, it follows that the Complaint fails to state a § 1986 claim against Attorney Hoke upon which relief can be granted. We, therefore, recommend that the court dismiss all claims against Attorney Hoke.
V. Amendment.
“[I]f a complaint is subject to a Rule 12(b)(6) dismissal, a district court must permit a curative amendment unless such an amendment would be inequitable or futile.” Phillips v. County of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008). “Under Rule 15(a), futility of amendment is a sufficient basis to deny leave to amend.” Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 175 (3d Cir. 2010). “Futility ‘means that the complaint, as amended, would fail to state a claim upon which relief could be granted.'” Id. (quoting In Re Merck & Co. Sec., Derivative, & ERISA Litig., 493 F.3d 393, 400 (3d Cir. 2007)). Thus, in determining whether an amendment would be futile, we apply the same standard as we apply in determining whether a complaint fails to state a claim upon which relief can be granted under Fed.R.Civ.P. 12(b)(6). Id. “In other words, ‘[t]he District Court determines futility by taking all pleaded allegations as true and viewing them in a light most favorable to the plaintiff.'” Id. (quoting Winer Family Trust v. Queen, 503 F.3d 319, 330-31 (3d Cir. 2007)).
We conclude that amendment of the Complaint would be futile. Judge Vedder is entitled to immunity from claims brought against him in both his official- and individual-capacities. And the plaintiffs chose not to address in a brief in opposition Attorney Hoke's arguments that the Complaint failed to state a claim against her upon which relief could be granted. Accordingly, we recommend that the court not grant the plaintiffs leave to amend the dismissed claims.
VI. Recommendation.
For the foregoing reasons, we recommend that the court grant Judge Vedder's motion to dismiss (doc. 12) and Attorney Hoke's motion to dismiss (doc. 28). We also recommend that the court deny Attorney Spurlin's motion to dismiss (doc. 13) and Attorney Fernandez, Kermit, Raymond, and Finkel & Fernandez's motion to dismiss (doc. 11). Thus, if our Report and Recommendation is adopted, only the claims against Attorney Spurlin, Attorney Fernandez, Kermit, Raymond, and Finkel & Fernandez would remain.
The Parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.