Bonser v. Town of Nottingham CV-96-343-M 06/20/97 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Terry L. Bonser, Mary L. Parks Bonser, and Cedar Waters Village Partnership
v. Civil No. 96-343-M
Town of Nottingham, et al.
O R D E R
Litigation in state court involving these parties (and
others related to them) has consumed nearly two decades, leaving
a procedural history as complex as it is voluminous. See, e.g..
Town of Nottingham v. Cedar Waters, Inc., 118 N.H. 282 (1978);
Bonser v. Courtney, 124 N.H. 796 (1984); Town of Nottingham v.
Bonser, 131 N.H. 120 (1988); Knox Leasing v. Turner, 132 N.H. 68
(1989). In the civil rights action1 brought in this court
plaintiffs allege that defendants are violating their federal due
process rights by issuing and attempting to enforce a writ of
execution against their real property when no judgment has been
entered against them.2 Plaintiffs seek declaratory and
injunctive relief to prevent enforcement of the writ of execution
1 Plaintiffs' complaint also includes several state law claims based on the same facts as their federal claims.
2 The writ of execution was issued in a proceeding in Rockingham County Superior Court captioned Town of Nottingham v. Robert A. Bonser and bearing docket number E-438-81. (and resulting alleged deprivation of their property without due
process) as well as money damages from defendants who are not
protected by immunity.
Procedural Background
Following the Magistrate Judge's initial review of
plaintiffs' complaint pursuant to LR 4.3, claims brought against
the state judicial defendants by the pro se plaintiffs, Mary
Parks Bonser and Terry Bonser, were dismissed. But the
partnership's claims were not dismissed under the local rule
since the partnership is properly represented. The judicial
defendants then moved to dismiss the partnership's claims against
them on grounds that the Eleventh Amendment and absolute judicial
immunity barred the claim for money damages, and that the writ of
execution was properly issued against the partnership. In the
alternative, the judicial defendants argued that this court lacks
jurisdiction to consider the partnership's claims, or, at least,
should abstain from intervening in an ongoing state proceeding.
At the hearing on defendants' motion to dismiss, the New
Hampshire Attorney General, on behalf of the judicial defendants,
represented that a state court order in Town of Nottingham v.
Robert A. Bonser and Cedar Waters Village, Inc., Docket No. E-
438-81, titled "Final Order" and dated July 20, 1990, constituted
2 the iudgment that obligated the plaintiff partnership to pay the
amounts reflected in the writ of execution. That order, however,
neither names the partnership as a defendant nor otherwise
declares the partnership liable for any contempt fines levied
against Robert Bonser and CWI. The Attorney General then argued
that certain inferences should be drawn from documents filed by
the Bonser defendants during their state appeal (as well as from
other orders entered in the state proceedings) -- particularly
that the state court intended the partnership to be included when
it used the plural term "defendants" in its July 20 order. In
addition, the Attorney General proposed an interpretation of
relevant New Hampshire Supreme Court decisions as establishing
that the partnership's current due process claims have already
been heard, considered, and denied in state court, thus
precluding further consideration of those same issues here.
The Attorney General did not demonstrate that any judgment
had ever been entered against the partnership in the state
proceedings, and the motion to dismiss was denied, but without
prejudice. Given the confusing state court record, these
proceedings were stayed for ninety days to allow plaintiffs to
file a motion to reopen the proceedings in state court in order
to obtain clarification as to what the state court did or did not
3 do with regard to entry of judgment (for contempt or otherwise)
against the partnership.
Plaintiffs dutifully filed a motion in Rockingham County
Superior Court in Town of Nottingham v. Robert Bonser, et al.,
docket number E-483-81, seeking a hearing "to clearly establish
what order, attachment or law this court is using to support
execution against the Cedar Waters Village Partnership, its
individual partners or property in favor of [p]laintiff
Rockingham County Superior Court." On April 9, 1997, the
superior court, McHugh, J., denied plaintiffs' motion for a
hearing "[f]or all of the reasons set forth in the [defendant
town's] response to the motion for a hearing." The town's
response, in essence, argued that the partnership and Mary Parks
and Terry Bonser had already had sufficient opportunity to be
heard and to present their due process arguments in state court.
The town's response relied on the same type of inferential
analysis previously presented to this court in the hearing on
judicial defendants' motion to dismiss.
The superior court sua sponte issued a revised order on
April 17, 1997, withdrawing its April 9 order. In its April 17
order, the state court determined that the motion for a hearing
previously filed by the partnership in the state court proceeding
would remain "in the 'pending' status" and that it would
4 reconsider whether a hearing was necessary after taking into
consideration developments in the case in federal court,
including the effect of the Attorney General filing the reguested
documents.
As reguested,3 certified copies of all state court documents
that purport to establish the regularity and enforceability of
the writ of execution issued against plaintiffs' property have
been filed. Accordingly, preliminary review of the nature and
merit of plaintiffs' federal claims, as well as this court's
jurisdiction to consider them, is now possible.
____________ ReviewoftheStateRecord
The challenged writ of execution was issued on May 6, 1996.
The writ expressly states that it is in favor of the Rockingham
County Superior Court, for satisfaction of a judgment recovered
against Robert A. Bonser, Cedar Waters Village Inc., and Cedar
Waters Village Partnership in the amount of $231,692.00. That
judgment, the writ says, was entered on January 26, 1996. But,
despite the writ's reference to a judgment entered on January 26,
1996, no such judgment has been produced, and the certified copy
3 Given the convoluted history of this case in state court and plaintiffs' often imprecise pleadings, this court has attempted to evaluate and clarify plaintiffs' claims and the status of previous litigation at the outset, in order to avoid repetition of the protracted state court proceedings.
5 of the docket entries in Town of Nottingham v. Robert Bonser,
docket number E-438-81, does not reflect entry of any judgment on
that date, or at any other time in reasonable proximity before
the first writ of execution was issued on January 29.4 Without
addressing the express language of the writ of execution, defense
counsel continue to argue that the combined effect of a series of
state court proceedings, orders, and judgments necessarily
demonstrate that iudgment was in fact entered against the
partnership, Mary Parks Bonser, and Terry Bonser for the amount
stated in the May 6 writ of execution, and that, accordingly,
their property may be taken to satisfy that iudgment.5
The defense chronology6 begins with the town's prejudgment
attachment petition, filed on March 27, 1987, which sought to
attach the property of Robert Bonser and CWI, to secure payment
of attorneys' fees and penalties. Before the court granted the
attachment, Robert Bonser and CWI conveyed the real estate to
Cedar Waters Village Partnership, which included Robert Bonser,
4 The clerk of court automatically enters all judgments in the docket. N.H. Rev. Stat. Ann. § 524:l-c; see also Richard V. Wiebusch, 5 New Hampshire Practice § 1860.
5 CWI was dissolved in May of 1987 and Robert Bonser died in May of 1994.
6 Defense counsel have provided certified copies of thirty- six superior court documents, marked as Exhibit A.
6 Mary T. Bonser,7 and Terry L. Bonser among the partners. CWI was
then dissolved. The partnership moved to intervene in the suit
to protect its interests in the property formerly owned by Robert
Bonser and CWI. The town filed a motion to set aside that
conveyance as fraudulent.
The town represents that on October 9, 1987, the state court
separated the fraudulent conveyance dispute from the original
case.8 The partnership's motion to intervene was granted as to
the fraudulent conveyance action, and individual partners were
allowed to appear pro se to represent their partnership
interests, but the motion was initially denied as to intervention
in the original case against Robert Bonser and CWI. The
attachment, which had been granted in favor of the town on June
1, 1987, was later vacated by the New Hampshire Supreme Court
with direction to resubmit motions for attachment to the judge
specifically assigned to the fraudulent conveyance action.
Although the procedural history becomes somewhat murky at
this point, the parties apparently agree that the partnership's
7 The court notes that Mary T. Bonser and Mary Parks Bonser are not the same people.
8 The portion of the state court record filed with this court reveals no state court order or docket entry to that effect. However, an order dated January 22, 1988, bearing docket number 87-E-657, appears to have been entered in the fraudulent conveyance action, confirming the maintenance of a separate case.
7 motion to intervene in the original case was later granted, in
August 1989. As the record filed here does not seem to include a
copy of that order, the court is not able to ascertainwhether or
not intervention by the partnership in the original case was
limited to protection of the individual partners' partnership
interests in property, as is asserted by the plaintiffs here.
Defense counsel say that the partnership filed a motion to
dismiss and to withdraw its intervenor status on July 3, 1990,
but the referenced document in the record is actually a different
motion to dismiss, which was filed by Robert Bonser and CWI in
August 1987. The docket sheet reflects, however, that a motion
to dismiss was filed by the partnership and Mary Parks Bonser on
July 6, 1990. That pleading does not appear to be included in
the record filed by the Attorney General.
In its order dated July 20, 1990, the state courtdeniedthe
partnership's motion to dismiss stating, "[t]he partnership
cannot claim party status for only those issues that are
favorable to it," and noted that "substantial identity" existed
between the partnership and CWI and that the fraudulent
conveyance action remained unresolved. The state court also
acknowledged in that order that no contempt judgment had been
rendered against the partnership, but nevertheless allowed the
town's attachment against partnership property, perhaps based on the likelihood of a fraudulent conveyance judgment in the related
action. The state court awarded the town approximately $1.5
million in fines and attorneys' fees. The town's attachment
against the property of Robert Bonser, CWI, and the partnership,
in the amount of $2 million, was recorded on July 23, 1990.
The state court's July 20, 1990, order was appealed to the
New Hampshire Supreme Court. In an order dated November 18,
1992, the supreme court reversed the superior court and remanded
the case for a determination of whether the fines assessed were
eguitable. The supreme court directed that the town should be
awarded only its reasonable costs and attorneys' fees, and that
whatever reasonable contempt fine was determined to be
appropriate should be payable to the superior court.
A hearing was held in the superior court in May 1993 to
assess appropriate costs, fees, and penalties. In its order of
June 14, 1993, as amended on July 20, 1993, the superior court
determined that the town was entitled to an award of reasonable
costs and attorneys' fees in the amount of $122,364.98. The
court also found that an appropriate contempt penalty had been
assessed between 1982 and 1985 in the amount of $38,550.00. In
accordance with the New Hampshire Supreme Court's order of
November 18, 1992, the court reduced the previously imposed daily
penalty for the four year period from May 1986, when the court imposed a fine for failure to comply with its order to remove the
offending mobile homes, until May 1990, when the mobile homes
were removed by the town, from $1000 to $100, resulting in an
aggregate fine of $145,300.00. The total amount of assessed
penalties to be paid to the court was $183,850.00. The New
Hampshire Supreme Court subseguently summarily affirmed the
superior court's ruling, and in November 1994, the United States
Supreme Court denied Robert Bonser's petition for a writ of
certiorari (Terry L. Bonser and Mary L. Parks were substituted as
parties because Robert Bonser had died in May 1994).
The legal skirmishing in state court continued with motions
for clarification and reconsideration and further appeals to the
New Hampshire Supreme Court. The record filed here does not
include state court orders relative to the later proceedings.
The supreme court stayed enforcement of the initial writ of
execution while the case was on appeal. The superior court
docket indicates that the supreme court lifted the last stay of
enforcement in October 1995, and that motions to reconsider were
denied.
On January 29, 1996, the superior court issued a writ of
execution in favor of Rockingham County Superior Court against
Robert A Bonser, CWI, and the partnership, based upon a judgment
allegedly recovered on January 26, 1996, in the total amount of
10 $231,692.00. Terry Bonser and Mary Parks Bonser then filed a
petition for original jurisdiction in the New Hampshire Supreme
Court seeking to challenge the writ of execution. The supreme
court granted the petition, but only as to their challenge to the
form of the writ of execution (the writ was unguestionably
invalid on its face as it bore the test of "Superior Court Chief
Justice Joseph A. DiClerico, Jr." -- Judge DiClerico had been
Chief Judge of the federal district court for over three years) .
The supreme court declared the writ defective and remanded the
case for amendment. The superior court then issued a second writ
of execution dated May 6, 1996, which recited the same judgment,
parties, and amount, but in a new form and, this time, at the
order of Linda S. Dalianis, Senior Justice, as witness.
Analysis
The town argues first that the partnership took the property
in the conveyance from Robert Bonser and CWI with actual notice
of the town's pending petition to attach and, therefore, by
operation of state law, the town's interest in the property is
superior to the partnership's interest. The town contends that
its interest is unaffected by intervening vacation of the
attachment order, because its original petition remained pending
and a subseguently granted attachment was perfected on July 23,
11 1990. The town also argues that, because it is merely asserting
a superior lien on the property, its claim does not reguire a
fraudulent conveyance judgment and is not affected by statutes
pertaining to partnerships. The town, however, points to no
state court iudgment, order, or decision affirming its
interpretation of the record and New Hampshire law. The Attorney
General and town concede that the state fraudulent conveyance
action has not proceeded to judgment — that is, there is no state
judicial decision setting aside the conveyance of the property to
the partnership as fraudulent. The state court record filed here
is silent as to the current status of the fraudulent conveyance
action, and neither the Attorney General nor the town has
addressed the guestion. In addition, the town has not explained
how its attachment, even if entirely valid, relates to the
current writ of execution, which expressly runs only in favor of
Rockingham County Superior Court (the town is not mentioned in
the writ) .
Second, the town asserts that because the partnership
intervened in the original case between the town and Robert
Bonser and CWI, the partnership somehow became a "defendant,"
indistinguishable from Robert Bonser and CWI, and is now liable
for penalties assessed against Robert Bonser and CWI, or for
other sanctions supposedly imposed based on zoning violations
12 that occurred after the partnership acquired the property. The
Attorney General, however, acknowledges that neither the
partnership nor Terry Bonser nor Mary Parks Bonser were ever
adjudged contemnors by any court of competent jurisdiction.
Nevertheless, the Attorney General argues that the July 20, 1990,
order in fact assessed costs, fees, and sanctions against the
partnership as well as Robert Bonser and CWI, even though neither
the partnership (nor its remaining individual partners) had ever
been found to be in contempt or otherwise subject to sanctions.
By its terms, the July 20 order limits the partnership's
liability to the contingency of the fraudulent conveyance action,
which as noted above, was never resolved and probably remains an
open case in state court. Certainly, the July 20 order does not
expressly obligate the partnership to pay any amount awarded to
the town. In fact, the court's clarified version of the order,
issued on August 20, 1990, which orders a writ of execution in
the amounts determined in the July 20 order, refers to "the
defendant," which would seem to recognize that the partnership is
not subject to the effect of the judgment.
The town and Attorney General also rely on the partnership's
appeal of the superior court's July 20 order, filed in September
1990, to show that the order should be construed as a judgment
against the partnership. One issue the partnership sought to
13 raise in its notice of appeal, but did not brief, was whether the
trial court erred "in attaching, entering civil judgment and
executing against the Appellants, Interveners Cedar Waters
Village Partnership, where there has never in this entire case
been any allegation of contempt against the Partnership, it has
not been found to have engaged in the receipt of any fraudulent
conveyance from any other party to these proceedings." Defense
counsel seem to argue that in failing to brief the issue the
partnership purposefully waived its due process claim on appeal
in order to avoid alerting the town to the procedural
deficiencies in the state proceeding — deficiencies that could
have been corrected by a final order in the fraudulent conveyance
action. Perhaps, but defense counsel's interpretation seems far
fetched .
Finally, defense counsel argue that the superior court's
order on June 14, 1993, amounted to a judgment against both the
defendants (Robert Bonser and CWI) and the interveners (the
partnership and its partners) obligating all to pay the amounts
awarded in favor of the town and the court. If that was the
superior court's intent, it is not clear from the language of the
order. Nowhere does the June 14, 1993, order state that it is a
iudgment against the intervenor partnership (or the individual
partners) in addition to defendants Robert Bonser and CWI. (In
14 addition, plaintiffs quote from an internal note or memorandum
allegedly found in a Rockingham County Superior Court file,
pertaining to the state proceeding, that advised the deputy clerk
of court to alert the town "to add the Estate of R. Bonser &
Terry & Mary Bonser as party dfts!" Since Robert Bonser was
alive until May 1994, plaintiffs say that the logical inference
from the memorandum is that at least Terry and Mary Bonser were
still not "defendants" as late as 1994.)
Notwithstanding the inferential chain defense counsel seek
to construct, it is apparent, at least on the record submitted by
counsel to this court, that no state court judgment has ever been
entered against the plaintiffs here in favor of the Rockingham
County Superior Court (or the town).
Jurisdictional Issues
Defendants insist that their defense is primarily based on
this court's lack of jurisdiction to consider plaintiffs' claims
under the Rooker-Feldman doctrine, and the advisability of
invoking familiar abstention doctrines to defer to the state
courts. The Rooker-Feldman doctrine precludes a federal district
court from reviewing a final judgment entered in a state court,
and from considering claims that are inextricably intertwined
with review of such proceedings. See Rooker v. Fidelity Trust
15 C o ., 263 U.S. 413, 416 (1923), and District of Columbia Court of
Appeals v. Feldman, 460 U.S. 4 62, 476 (1983); see also Wang v.
New Hampshire Bd. of Registration in Medicine, 55 F.3d 698, 703
(1st Cir. 1995). Federal claims are inextricably intertwined
with state court proceedings (even if precisely the same claims
were not raised previously in state litigation) if the party had
an opportunity to raise those claims and if resolution of the
claims in federal court would effectively provide a form of
federal appellate review of the state court's decision. See
Pennzoil Co. v. Texaco, 481 U.S. 1, 25 (1987) (Marshall, J.,
concurring); Lancellotti v. Fav, 909 F.2d 15, 17 (1st Cir. 1990).
Once a state court issues a final judgment, a federal
district court lacks jurisdiction to review the decision even if
the state judgment is patently wrong or was entered following
patently unconstitutional proceedings. Young v. Murphy, 90 F.3d
1225, 1231 (7th Cir. 1996). Thus, litigants may not seek to
reverse a final state court judgment via civil rights litigation
filed in federal district court. Ritter v. Ross, 992 F.2d 750,
754 (7th Cir. 1993).
If plaintiffs' claims, in essence, challenge a state court
final iudgment, the Rooker-Feldman doctrine would, of course,
preclude this court's exercise of jurisdiction, even to review
the constitutionality of that judgment or its underlying
16 proceedings. See Homola v. McNamara, 59 F.3d 647, 651 (7th Cir.
1995). This case is somewhat unique, however, in that apparently
no state court judgment exists that obligates the partnership or
Terry Bonser or Mary Parks Bonser to pay the amount set forth in
the current writ of execution. And, no state court order or
directive purports to authorize a taking of plaintiffs' property,
beyond the mere inclusion of the partnership name in the title of
a writ of execution.
Although the writ of execution is unquestionably a form of
state court "order," it does not serve, for purposes of deciding
jurisdiction, as a final state court iudgment. Under New
Hampshire's own law, a writ of execution "is a court order
compelling the application of property to the satisfaction of a
iudgment." Richard V. Wiebusch, 5 New Hampshire Practice § 1892
(emphasis added). A judgment "is the judicial act by which the
verdict or decree is confirmed and the case or proceeding is
finally concluded." Id. at § 1851. A writ of execution, which
is an order but not a iudgment, is meaningful only to the extent
it is issued upon a valid judgment, which judgment also must be
described in substantially correct terms in the writ. Eaton v.
Badger, 33 N.H. 228, 235 (1856); Avery v. Bowman, 40 N.H. 453,
455 (1860). Accordingly, review of the validity of a writ of
execution, at least to the extent that the reviewing federal
17 court merely inquires as to the form of the writ and the
existence of a valid underlying judgment, does not involve review
of the state judgment on which it is based, and does not
implicate the Rooker-Feldman jurisdictional limitation. See,
e.g., Homola, 59 F.3d at 651 (ex parte writs are subject to
limited collateral attack); cf. Busch v. Torres, 905 F. Supp.
766, 771 (C.D. Cal. 1995) (Rooker-Feldman precludes federal court
review of a iudgment and its execution) . Issuance of a writ of
execution does not necessarily establish the existence of a
supporting judgment, although, obviously, issuance of a writ in
the absence of judgment should be a rare error.
Even a cursory review of the state record filed in this
court shows that no judgment was entered against the plaintiffs
in favor of Rockingham County Superior Court and certainly not on
January 26, 1996, as is recited in the current writ of execution.
Defendants simply have not demonstrated that judgment in favor of
the Rockingham Superior Court for the amount stated in the writ
has ever been entered against these plaintiffs. In addition,
defense counsel seem to agree that the state court proceeding
remains open (per Judge McHugh's sua sponte order dated April 17,
1997). Therefore, based on the record presented here, the
Rooker-Feldman doctrine does not preclude this court's exercise
18 of jurisdiction to consider plaintiffs' federal constitutional
claims.
Although this court apparently does have jurisdiction over
plaintiffs' federal claims based on the present record,
nevertheless, because the state court has declared that
plaintiffs' motion is in a "pending status," and, therefore, the
state proceeding is "ongoing," federal abstention would appear to
be the most appropriate course at this juncture. A federal
court, while unflaggingly obligated to exercise its statutorily
conferred jurisdiction, may nevertheless abstain from providing
discretionary relief when abstention principles so counsel.
Ouakenbush v. Allstate Ins. Co., 116 S. C t . 1712, 1720 and 1728
(1996). The federal policy of comity accords "'proper respect
for state functions'" and "precludes any presumption that the
state courts will not safeguard federal constitutional rights."
Middlesex Ethics Comm, v. Garden State Bar Ass'n, 457 U.S. 423,
431 (1982) (guoting Younger v. Harris, 401 U.S. 37, 44 (1971)).
Under Younger abstention principles, a federal court will
consider three factors: (1) Are there ongoing state court
proceedings? (2) "[D]o the proceedings implicate important state
interests[?]" and (3) "[I]s there an adeguate opportunity in the
state proceedings to raise constitutional challenges[?]"
19 The case of Town of Nottingham v. Robert A. Bonser, docket
number E-438-81, is "ongoing." See Revised Order on Defendants'
Motion for Hearing dated April 17, 1997 (explaining that
plaintiffs' motion for a hearing in that court is in a "'pending'
status"). That pending motion raises the issue of plaintiffs'
liability for contempt fines and attorneys' fees and costs
assessed in that state proceeding in favor of the town and
Rockingham County Superior Court. Contempt proceedings (the
asserted basis for the financial sanctions assessed) do implicate
important state interests that do gualify as appropriate matters
for federal abstention. See Juidice v. Vail, 430 U.S. 327, 336
(1977). Although the plaintiffs here have experienced more than
a little difficulty in obtaining state court review of their
federal constitutional claims, the problem stems as much from
their presentation and articulation of the issues as the complex
and voluminous state court record over the years. Thus, no
negative presumption regarding the state courts' ability or
willingness to protect plaintiffs' federal constitutional rights
is warranted here — there is no doubt that New Hampshire's courts
will fairly and fully consider plaintiffs' claims.9
9 Indeed plaintiffs' claims are new and unresolved — i.e. whether plaintiffs' property is, in fact, subject to seizure based upon a writ of execution that is not supported by an underlying judgment and, if so, whether such action violates federal constitutional guarantees. At a minimum, these claims
20 As part of the ongoing state proceeding, plaintiffs
(interveners in the state proceeding) can challenge the
procedural basis for and the constitutional legality of the writ
of execution against their property. See, e.g.. Letter to "Mr.
and Mrs. Bonser" from Howard J. Zibel, Clerk of the New Hampshire
Supreme Court, June 4, 1996 (explaining that the latest writof
execution had not been reviewed by the supreme court and
helpfully suggesting that the supreme court is likely not the
proper forum in which to begin).
The May 6, 1996, writ of execution also seems to suffer from
facial irregularities that can be corrected in the state court
proceeding upon appropriate motion. For example, contrary to the
writ's attestation, no judgment in the state proceeding (docket
number E-438-81) was docketed on or near January 26, 1996, at
least not according to the certified docket entries filed here.
The last state court decision, included in the record here and
issued prior to the writs of execution, is dated December 19,
1994, and it orders that a writ of execution shall issue in favor
of the town "forthwith." The town is not mentioned in the
current writ.
have not been raised or ruled on with regard to the May 6, 1996, writ of execution (and do not appear to have been considered, addressed, or decided previously).
21 Based on the record presented in this case, there is no
state judgment relative to the partnership having been held in
contempt, or providing that the partnership is obligated to pay
assessments in favor of the town or the superior court. The
"Order on Issues Remanded by Supreme Court," dated June 14, 1993
as amended on July 20, 1993, assessed attorneys' fees and costs
in the town's favor ($122,364.98) as well as contempt fines in
favor of the court ($183,850.00). However, only Rockingham
County Superior Court is named in the writ of execution as a
judgment creditor, and the amount of the judgment recorded is
$231,692.00, which obviously exceeds the amount previously
assessed in favor of the court.
There may well be other decisions, orders, or judgments by
the state court, or particular circumstances that are not
apparent on the record, as filed by defense counsel here, that
would explain the facial irregularities in the state court
proceedings. But, in any event, as the state court is far more
familiar with the procedural complexities of this case, it is
decidedly the better forum in which to address the federal due
process issues raised by plaintiffs in each forum. If plaintiff
give the state courts a fair opportunity to understand just what
their claims are, the state courts will, of course, fully and
fairly consider them. This court will abstain from considering plaintiffs' federal
claims under Younger abstention principles, and will decline
jurisdiction over the state law causes of action for the same
reasons, see 28 U.S.C.A. § 1367 (c) (4) .10
Although claims for discretionary relief, such as
declaratory and injunctive relief, may be remanded to state
court, federal claims seeking money damages are different — they
must remain in federal court. Ouakenbush, 116 S. C t . at 1728.
Plaintiffs' complaint asserts claims for money damages against
only defendants who are not protected by immunity, which would,
of course, exclude the judicial defendants, at least as to the §
1983 claims. It remains unclear, however, whether plaintiffs
seek money damages against the town under § 1983, as well as
under their state law causes of action. Bearing in mind that
plaintiffs' property has not yet been seized, that "a procedural
due process claim may not be redressed under section 1983 where
an adeguate state remedy exists," Reid v. State of. N.H., 56 F.3d
332, 341 (1st Cir. 1995), and that a town cannot be held liable
under § 1983 absent unconstitutional injury caused by a municipal
10 This court recognizes (and the plaintiffs should understand) that once the state court does enter iudgment addressing the issues they have raised in their civil rights action here and which are pending in the state court proceeding, the Rooker-Feldman doctrine will operate to preclude further review by this court of that final state court judgment.
23 policy, custom, or practice. Board of the County Comm'rs of Bryan
County, Okla. v. Brown, 117 S. C t . 1382, 1388 (1997), it seems
highly unlikely that plaintiffs intend to maintain a § 1983 claim
against the town for damages, or that such a claim would be
viable. However, this court cannot make that determination sua
sponte, without providing the parties with notice and an
opportunity to be heard. See Wyatt v. City of Boston, 35 F.3d
13, 14-15 (1st Cir. 1994).
Accordingly, all parties11 are hereby provided an
opportunity to respond to the court's intent (1) to abstain from
considering all of plaintiffs' claims, (2) to remand all state
law claims and the § 1983 claims for declaratory and injunctive
relief, and (3) to dismiss all damages claims under § 1983. The
parties shall file their responses and supporting memoranda
within twenty days of the date of this order. Upon expiration of
the twenty-day response period and after considering the filed
responses, the court will issue an appropriate order.
11 Sheriff Wayne Vetter, who is a named defendant in this action, has moved to dismiss the claims against him. As plaintiffs seek only injunctive relief as to Sheriff Vetter, the court's abstention decision would also apply to those claims.
24 SO ORDERED.
Steven J. McAuliffe United States District Judge
June 20, 1997
cc: Terry L. Bonser Mary L. Parks William A. Dewhurst, Esq. William G. Scott, Esq. Christopher P. Reid, Esq. Douglas N. Steere, Esq. Rockingham County Superior Court (courtesy copy)