Karl E. Gary, et al. v. The Braddock Cemetery, et al.

Karl E. Gary, and other owners of burial plots in
Braddock Cemetery (collectively, "Plaintiffs"), appeal the
district court's dismissal of the action they brought under 42
U.S.C. § 1983 against Braddock Cemetery, Consol Energy, and
Consol Pennsylvania Coal Company (collectively,
"Defendants"). The district court dismissed that suit after
concluding that it lacked subject matter jurisdiction pursuant to
the Rooker-Feldman doctrine. In No. 06-3617, Consol Energy
and Consol Pennsylvania Coal Company (collectively "Consol")
appeal the district court's failure to rule on their motion for
sanctions under Fed. R. Civ. P. 11, before invoking Rooker-
Feldman and dismissing Plaintiffs' complaint. The district court
had "temporarily" denied Consol's Rule 11 motion, pending the
outcome of the appeal of the dismissal of the complaint. Consol
argues that the district court should have ruled on its Rule 11
motion before entering a final order. We agree. For the reasons
that follow, we will affirm the district court's dismissal of the
Plaintiffs' action based upon the Rooker-Feldman doctrine in
06-3469, but we will remand in 06-3617 and order the district
court to rule on Consol's motion for sanctions.

I.

The facts of this case are recited in the very thorough and
thoughtful May 17, 2006, Report and Recommendation of
Magistrate Judge Francis X. Caiazza (the "R and R"), which is
attached hereto as an appendix. As the Magistrate Judge
accurately notes: "[t]his case proves the axiom that ‘the wheels
of justice grind slowly.' [It has] occupied state courts since
March 1991 when the first of four consolidated claims was
filed." App. at 2.

The R and R recites the factual and procedural history of
this dispute, and we need not reiterate it here. Rather, we only
note that this litigation arises out of a two week mining
operation that began in 1991. Thereafter, some purchasers of
burial plots sued the Cemetery and Consol in the Court of
Common Pleas for Greene County, Pennsylvania challenging
the Cemetery's right to execute a lease or subsidence agreement
with the mining company, and alleging various violations of
state law that purportedly interfered with the ground support of
their burial plots resulting in subsidence of those plots.

All liability issues were resolved in favor of the Plaintiffs
based on summary judgment motions. The state court then held
a nine day jury trial limited to the issue of damages. After all
proof had been submitted, the jury was instructed that damages
could be calculated based on the value of the coal taken from the
Cemetery. Using this measure, the jury assessed damages
against Consol and the Cemetery.

On appeal, the Pennsylvania Superior Court determined
that the damage award should not have been based on the value
of the coal extracted, because the Plaintiffs did not own the
mineral rights to the burial plots. The Court also found that the
Court of Common Pleas had erred in granting summary
judgment in favor of the Plaintiffs on a number of claims.

Accordingly, the Superior Court reversed the order of the Court
of Common Pleas, and remanded the matter for a new trial
encompassing liability as well as damages.

As the Magistrate Judge sets forth in his R and R, on
retrial, the trial court explained the jury's finding in favor of the
defendants as follows:

The jury, after a three-week trial and after hearing
that there was no visible damage to the cemetery
and that the sale of lots and burials had continued
up to at least the time of trial, and after hearing
that no one, plaintiff or otherwise, had requested
the transfer of the remains of his or her loved one
to another cemetery, found that whatever
subsidence had occurred did not interfere with the
reasonable and proper enjoyment of the lots as
burial sites.

Whitlatch v. Braddock Cemetery, No. 152-1991, slip op. at 9-10
(Pa. Common Pleas Nov. 5, 2001). App. at 6.
Given the number of issues that 1 were raised on appeal, we
(like the Superior Court) are reminded of the following quote
from our colleague, Judge Aldisert:

With a decade and a half of federal appellate court
experience behind me, I can say that even when
we reverse a trial court it is rare that a brief
successfully demonstrates that the trial court
committed more than one or two reversible errors.

I have said in open court that when I read an
appellant's brief that contains ten or twelve points,
a presumption arises that there is no merit to any
of them. I do not say that it is an irrebuttable
presumption, but it is a presumption nevertheless
that reduces the effectiveness of appellate
advocacy. Appellate advocacy is measured by
effectiveness, not loquaciousness.

Aldisert, "The Appellate Bar: Professional Competence and
Professional Responsibility-A View From the Jaundiced Eye of
One Appellate Judge,"Capital University Law Review 445, 458
Plaintiffs filed post-trial motions in which they argued,
among other things, that allowing the verdict to stand would
amount to an uncompensated "taking" of their property. The
trial court rejected that claim and Plaintiffs appealed to the
Pennsylvania Superior Court; their brief raised seventeen
issues.1 Their claims included the argument that the jury's
verdict "effected a de facto condemnation of [the Plaintiffs']
support estate, entitling [them] to just compensation under the
Fifth Amendment." The Superior Court rejected that argument,
and affirmed the order of the Court of Common Pleas. The
Supreme Court of Pennsylvania refused allocatur, and Plaintiffs
did not request a writ of certiorari from the United States
Supreme Court, to raise their Fifth Amendment "taking" claim.
Instead, they filed the instant suit under 42 U.S.C. § 1983 in the
United States District Court for the Western District of
Pennsylvania.

They argue that the Supreme Court of Pennsylvania's
denial of their petition for reconsideration, "clothed the
Defendants under color of state law with the authority to take
private property without just compensation." They claim that
the Defendants' actions thus resulted in an unconstitutional
Fed. R. Civ. 2 P. 11(c)(1) requires a litigant to give advance
notice of the intent to move for sanctions by properly serving the
opposing party with a copy of the motion prior to filing with the
"taking" of their "support estates" in violation of the United
States and Pennsylvania Constitutions.

Consol responded by serving Plaintiffs with a copy of the
motion for Rule 11 sanctions that they intended to file with the
district court pursuant to Rule 11(c)(1).2 In their accompanying
letter, dated November 1, 2005, Consol cited the Rooker-
Feldman doctrine, the lack of any state action as required for an
action pursuant to § 1983, the bar of the applicable statute of
limitations, and the doctrines of collateral estoppel and res
judicata in explaining why Plaintiffs' federal suit was barred.

Consol warned that in light of the long history of litigation and
the final state court decision in Defendants' favor, Plaintiffs'
federal suit was frivolous and in Consol's opinion, meant only
to harass. When Plaintiffs did not dismiss their complaint as
requested in the Rule 11 notice, Consol filed a motion to dismiss
together with its motion for Rule 11 sanctions.3

The case was referred to a Magistrate Judge who advised
Consol at a status conference that he would deny their Rule 11
motion without prejudice to Consol's right to renew that motion
after a ruling on the motion to dismiss. Subsequently, the
Magistrate Judge issued the aforementioned R and R explaining
that Plaintiffs' action was barred by the Rooker-Feldman
doctrine. The R and R also explained that Plaintiffs could not
maintain a suit under § 1983 because the injuries they
complained of were not the result of any state action. The
district court subsequently adopted the R and R and dismissed
the complaint, Gary v. Braddock Cemetery, 2:05cv1438 (W.D.
Pa. June 27, 2006) (memorandum order granting motion to
dismiss). This appeal followed.

Thereafter, Consol renewed its motion for Rule 11
sanctions, and the Magistrate Judge ordered Plaintiffs to respond
to Consol's Rule 11 motion by August 3, 2006. However, on
July 23, 2006, Plaintiffs filed their Notice of Appeal in 06-3469
challenging the district court's dismissal of their Complaint. On
July 24, prior to receiving any response from Plaintiffs on the
Rule 11 motion, the Magistrate Judge issued an order which
"temporarily" denied the Rule 11 motion while explaining that
the motion would be stayed pending resolution of Plaintiffs'
appeal. The district court overruled Consol's objections in an
order dated August 3, 2006. Thereafter, Consol filed the Notice
of Appeal in No. 06-3617 challenging the district court's failure
to rule on the Rule 11 motion before dismissing the Complaint.

II.
We first address the district court's dismissal of the
complaint for lack of subject-matter jurisdiction based on the
Rooker-Feldman doctrine. 4 That doctrine takes its name from
the two Supreme Court cases that gave rise to the doctrine.
Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); District of
Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983).

The doctrine is derived from 28 U.S.C. § 1257 which states that
"[f]inal judgments or decrees rendered by the highest court of a
state in which a decision could be had, may be reviewed by the
Supreme Court. . ..". See also Desi's Pizza, Inc. v. City of
Wilkes Barre, 321 F.3d 411, 419 (3d Cir. 2003). "Since
Congress has never conferred a similar power of review on the
United States District Courts, the Supreme Court has inferred
that Congress did not intend to empower District Courts to
The Magistrate J 5 udge recited our pre-Exxon formulation of
the doctrine, wherein a federal action is barred either "where the
claim raised in federal court was actually litigated in state court"
or "where the federal claim is inextricably intertwined with the
state adjudication." We note that several circuit courts of
appeals have revisited the appropriate contours of the
"inextricably intertwined" prong in the wake of the Exxon
decision. See, e.g. Hoblock v. Albany County Bd. of Elections,
422 F.3d 77 (2d Cir. 2005); McCormick v. Braverman, 451 F.3d
382, 393-94 (6th Cir. 2006). The doctrine clearly applies here
under either formulation of the doctrine. However, caution is
review state court decisions." Desi's Pizza, 321 F.3d at 419.

After reviewing the arguments challenging the district
court's dismissal for lack of subject matter jurisdiction, we
conclude that Magistrate Judge Caiazza adequately explained
why the district court lacked subject matter jurisdiction in the
thoughtful R and R that the district court adopted and which we
attach as an appendix to this opinion. Inasmuch as we can add
little to the explanation offered in that R and R, we will affirm
the dismissal of Plaintiff's complaint substantially for the
reasons set forth therein. See App. at 7-10.

We need only add that this action falls squarely within
that class of actions prohibited by the Rooker-Feldman doctrine,
even as limited by the Supreme Court's recent opinion in Exxon
Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280
(2005). Plaintiffs, the "state-court losers," brought this suit
"complaining of injuries caused by [a] state-court judgment[]
rendered before the district court proceedings commenced and
inviting district court review and rejection of [that] judgment."
Exxon Mobil, 544 U.S. at 284. Because federal district courts
lack subject matter jurisdiction to entertain appeals from state
courts, the district court correctly adopted the reasoning of the
R and R and dismissed this action for lack of subject-matter
jurisdiction. Rooker, 263 U.S. at 416; Feldman, 460 U.S. at
482; Exxon Mobil, 544 U.S. at 292. We will therefore affirm the
Rule 11 imposes specific duties 6 upon attorneys practicing
before the federal courts. It provides in part:

Every pleading, written motion, and other paper
shall be signed by at least one attorney of record
. . . . By presenting to the court . . . a pleading,
written motion, or other paper, an attorney . . . is
certifying that to the best of the person's
knowledge, information, and belief, formed after
an inquiry reasonable under the circumstances, (1)
it is not being presented for any improper
purpose, such as to harass or to cause unnecessary
delay or needless increase in the cost of litigation;
(2) the claims, defenses, and other legal
contentions therein are warranted by existing law
or by a nonfrivolous argument for the extension,
modification, or reversal of existing law or the
district court's order dismissing this suit substantially for the
reasons set forth in the R and R.

III.

Our affirmance of the dismissal of the Complaint does
not end our discussion because, in 06-3617, Consol argues that
the district court erred in not ruling on the Rule 11 motion
before entering final judgment.6 We agree. We usually review
a district court's ruling on a motion for sanctions under Rule 11
for an abuse of discretion. Simmerman v. Corino, 27 F.3d 58,
62 (3d Cir. 1994). Here, however, there is nothing to review
because the district court never ruled on the propriety of Rule 11
sanctions even though it entered a final order dismissing the suit.

Almost twenty years ago, we adopted a supervisory rule
"that counsel seeking Rule 11 sanctions must file their motions
before entry of final judgment in the district court." Mary Ann
Pensiero, Inc. v. Lingle, 847 F.2d 90, 92 (3d Cir. 1988). We
explained that "[s]wift disposition of a Rule 11 motion is
essential so that any ensuing challenge to it might be included
with the appeal on the merits." Id. at 99. The supervisory rule
was intended to eliminate piecemeal appeals and "serve[] the
interest of judicial economy without risking a significant waste
of district court efforts." Id. Although we did not explicitly
state that a district court was also required to rule on a motion
for Rule 11 sanctions prior to entry of final judgment, Pensiero
clearly anticipates that a district court would rule on the motion
for sanctions prior to, or contemporaneously with, entering final
judgment. See id. ("We will henceforth require prompt action
by a litigant whenever a Rule violation appears. In that way, the
district court will be able to decide the matter in a timely
fashion so as to eliminate additional appeals.") (emphasis
added).

Thus, following Pensiero, we held in Simmerman that a
district court imposing Rule 11 sanctions sua sponte must do so
prior to the entry of final judgment. There, we explained:

There is no inordinate burden in requiring the
district court to raise and resolve any Rule 11
issues prior to or concurrent with its resolution of
the merits of the case. . . . Similarly, concurrent
consideration of challenges to the merits and the
imposition of sanctions avoids the invariable
demand on two separate appellate panels to
acquaint themselves with the underlying facts and
the parties' respective legal positions. In the
context of a Rule 11 violation, the court and
opposing party are in similar positions. Both
know of the rule and its requirements, and both
possess similar information about the conduct and
the pleadings of counsel. . . . There is no reason
why prompt action should be required of an
opposing party and yet not similarly required of
the court.
27 F.3d at 63.

Consol filed its motion for Rule 11 sanctions in a timely
fashion, consistent with Pensiero, and Plaintiffs do not argue to
the contrary. For reasons not apparent from this record, the Rule
11 motion was initially dismissed without prejudice, and Consol
renewed its Rule 11 motion after the district court granted the
motion to dismiss.7 An obvious corollary to requiring parties
to file their Rule 11 motion prior to final judgment, and
requiring a district court imposing sanctions sua sponte to do so
prior to or contemporaneously with final judgment, is that
district courts must resolve any issues about imposition of
sanctions prior to, or contemporaneously with, entering final
judgment. Requiring Rule 11 motions to be filed before final
judgment is entered accomplishes nothing unless we are able to
resolve any challenge to the grant or denial of Rule 11 sanctions
when we rule on the merits of the final judgment.

Consol believes that the record supports imposition of
sanctions because the district court dismissed Plaintiffs' suit on
the precise grounds Consol cited in the letter Consol sent to
Plaintiffs as part of the notice it served under Rule 11. Consol
therefore "asks [us] to conclude that sanctions should be granted
here and return the case to the District Court and/or the
Magistrate Judge for a determination of the appropriate amount
to be levied, or in the alternative, that [we] impose sanctions,
based on the facts and law as set forth in the record." Consol
Br. at 24. Although Consol's reliance on Rooker-Feldman
certainly had merit as explained in the R and R, it is neither
appropriate nor prudent for us to attempt to resolve the propriety
or amount of any Rule 11 sanctions on this record.

As we have just explained, motions under Rule 11 must
be decided in the first instance by the trial court absent
extraordinary circumstances that do not appear on this record
and which we cannot now imagine. Accordingly, we will
remand this case to the district court to rule on Consol's Rule 11
motion.

* * *

http://www.ca3.uscourts.gov/opinarch/063469p.pdf

For the foregoing reasons, the dismissal for lack of
subject-matter jurisdiction will be AFFIRMED and the case is
REMANDED for a ruling by the district court on Consol’s
motion for Rule 11 sanctions.

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