Keene Corp. v. Cass

• Decision Date: 09 July 1990
• Docket Number: No. 622,89-5603,Nos. 89-5405,622,s. 89-5405
• Citation: 908 F.2d 293
• Parties: 61 Ed. Law Rep. 897 KEENE CORPORATION, a corporation, Appellant, v. Judge J.E. CASS, not individually, but as a Judge of the Minnesota District Court, a Tenth Judicial District; Independent School District, a Minnesota school district; Bette Jayne Haak; Robert Engwer; Marilyn Vars; Bruce Beck; Lillian Johnson; Edward Mishmash; and Steve Smitt, not individually, but as the members of the School Board of Independent School District; Michael R. Sieben, an individual; Harvey N. Jones, an individual; Michael R. Strom, an individual; Edward J. Westbrook, an individual; and J. Anderson Berly, an individual, Appellees. KEENE CORPORATION, a corporation, Appellant, v. Judge J.E. CASS, not individually, but as A Judge of the Minnesota District Court, Tenth Judicial District; Independent School District # 622, a Minnesota school district; Bette Jayne Haak, Robert Engwer, Marilyn Vars, Bruce Beck, Lillian Johnson, Edward Mishmash, Steve Smitt, not individually, but as the members of the School Board of Independent School District; Michael R. Sieben, an individual; Michael R. Strom, an individual; J. Anderson Berly, an individual, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 293

908 F.2d 293

61 Ed. Law Rep. 897

KEENE CORPORATION, a corporation, Appellant,

v.

Judge J.E. CASS, not individually, but as a Judge of the

Minnesota District Court, a Tenth Judicial District;

Independent School District No. 622, a Minnesota school

district; Bette Jayne Haak; Robert Engwer; Marilyn Vars;

Bruce Beck; Lillian Johnson; Edward Mishmash; and Steve

Smitt, not individually, but as the members of the School

Board of Independent School District No. 622; Michael R.

Sieben, an individual; Harvey N. Jones, an individual;

Michael R. Strom, an individual; Edward J. Westbrook, an

individual; and J. Anderson Berly, an individual, Appellees.

KEENE CORPORATION, a corporation, Appellant,

v.

Judge J.E. CASS, not individually, but as A Judge of the

Minnesota District Court, Tenth Judicial District;

Independent School District # 622, a Minnesota school

district; Bette Jayne Haak, Robert Engwer, Marilyn Vars,

Bruce Beck, Lillian Johnson, Edward Mishmash, Steve Smitt,

not individually, but as the members of the School Board of

Independent School District No. 622; Michael R. Sieben, an

individual; Michael R. Strom, an individual; J. Anderson

Berly, an individual, Appellees.

Nos. 89-5405, 89-5603.

United States Court of Appeals,

Eighth Circuit.

Submitted May 17, 1990.

Decided July 9, 1990.

David F. Herr, Minneapolis, Minn., for appellant.

Michael R. Strom, Hastings, Minn., and Peter M. Ackerberg, St. Paul, Minn., for appellees.

Before JOHN R. GIBSON, Circuit Judge, BRIGHT, Senior Circuit Judge, and FAGG, Circuit Judge.

BRIGHT, Senior Circuit Judge.

In these consolidated appeals, Keene Corporation (Keene) appeals a district court ¹ judgment dismissing its suit for lack of subject matter jurisdiction and denying its motion for a preliminary injunction and appeals a separate judgment granting defendants, other than Judge J.E. Cass, their attorneys fees under 42 U.S.C. Sec. 1988 (1988). Keene contends that subject matter jurisdiction is properly grounded under 42 U.S.C. Sec. 1983 (1988) and that the district court improperly determined that Keene's lawsuit lacked merit, thus warranting an award of attorneys fees. We affirm the district court's dismissal of this action but reverse its award of attorneys fees.

I. BACKGROUND

Keene's former subsidiary, Keene Building Products Corporation, and Keene's corporate predecessors, Baldwin-Ehret-Hill Company, Ehret Magnesia Manufacturing Company and BEH, at one time manufactured and sold insulation products containing asbestos. Because of its relationship to these entities, Keene is a defendant in over 70,000 asbestos personal injury cases and 100 property damage lawsuits.

In 1978, Keene sued its insurance carriers in federal court to recover the defense and indemnity costs for these lawsuits. Keene Corp. v. Insurance Corp. of N. Am., No. 78-1011 (D.C.Dist.Ct. Mar. 30, 1984) [hereinafter Keene v. INA ]. Subject to a protective order issued in that case, Keene produced documents relating to its defense of the personal injury cases and permitted its defense counsel to be deposed about the nature of the defenses used. Keene claims that these disclosures did not constitute a waiver of the attorney-client privilege.

In a separate lawsuit in Minnesota state court, Independent School District # 622 (ISD) brought an action against Keene, among others, to recover the costs of removing asbestos from a high school. In its discovery requests, ISD sought materials which included documents produced by Keene in the Keene v. INA case. Keene objected on grounds of privilege and asserted that the discovery requests conflicted with the protective order issued in Keene v. INA. ISD then moved to compel production of the documents. The state trial court, Judge J.E. Cass, granted the motion. Independent School Dist. # 622 v. Bor-Son Const., Inc., No. C5-84-1701 (Minn.Dist.Ct. Feb. 2, 1989).

Keene then sought discretionary review of Judge Cass' order and a writ of prohibition from the Minnesota Court of Appeals. The appeals court denied review of the order and the writ, ruling that ISD sought only "original documents" belonging to Keene and not materials subject to the protective order issued in Keene v. INA and that Keene failed to establish that the documents sought were "clearly not discoverable." Independent School Dist. # 622 v. Bor-Son Constr., Inc., No. C3-89-389 (Minn.Ct.App. Mar. 22, 1989). Subsequently, both the Minnesota Supreme Court and the United States Supreme Court denied review. Independent School Dist. # 622 v. Bor-Son Constr., Inc., No. C3-89-389 (Minn. May 24, 1989); Keene Corp. v. Independent School Dist. # 622, --- U.S. ----, 110 S.Ct. 283, 107 L.Ed.2d 263 (1989).

Keene then filed this section 1983 action in federal court, seeking an injunction from enforcement of Judge Cass' order pending a decision on the merits. Keene contended that the depositions, exhibits and affidavits sought by ISD were subject to a federal court protective order, contained privileged information and attorney work product and that enforcement would violate its constitutional right to assistance of counsel under the fifth amendment due process clause. Judge Cass and ISD moved to dismiss for lack of subject matter jurisdiction.

After a hearing, the district court granted the motion to dismiss, ruling that under District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983), the court lacked subject matter jurisdiction to review a state court decision and issue an injunction. The district court noted that the proper forum for reviewing the state court decision was the United States Supreme Court. Additionally, the district court ruled that under Harris v. Missouri Court of Appeals, 787 F.2d 427 (8th Cir.), cert. denied, 479 U.S. 851, 107 S.Ct. 179, 93 L.Ed.2d 114 (1986), Judge Cass was immune from suit and therefore could not be enjoined from enforcing the order. This timely appeal followed.

Subsequently, ISD moved for an award of attorneys fees under 42 U.S.C. Sec. 1988 (1988). The district court granted the motion in the amount of $9,077.81. Keene appeals from this award.

II. DISCUSSION

Keene contends that the district court may properly exercise jurisdiction over this case because the violation of Keene's constitutional rights, which will occur through enforcement of the state court order, constitutes a cognizable claim under 42 U.S.C. Sec. 1983. Additionally, Keene argues that because it seeks only prospective injunctive relief, judicial immunity does not extend to Judge Cass. Lastly, Keene challenges the district court's award of attorneys fees.

A. Subject Matter Jurisdiction

Keene contends that this lawsuit is not an attempt to have a federal court assert jurisdiction and review a state court order. Rather, Keene seeks a federal court ruling that the state court order is unenforceable because it violates Keene's due process rights and the supremacy clause of the United States Constitution. Specifically, Keene argues that the state court order interferes with a prior federal court protective order and violates its rights to effective assistance of counsel and access to the courts because it adversely affects the attorney-client privilege and the work-product immunity doctrine.

The existence of subject matter jurisdiction in federal court is a question of law subject to de novo review. Schmidt v. United States, 901 F.2d 680, 683 (8th Cir.1990). Federal courts, with the exception of the United States Supreme Court, do not possess appellate jurisdiction over state court proceedings. Atlantic Coast Line R.R. v. Brotherhood of Locomotive Eng'rs, 398 U.S. 281, 296, 90 S.Ct. 1739, 1747, 26 L.Ed.2d 234 (1970) (lower federal courts may not sit in review of a state court decision); Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16, 44 S.Ct. 149, 150, 68 L.Ed. 362 (1923) (district courts may not exercise appellate jurisdiction over state courts); Williams v. McKenzie, 834 F.2d 152, 153 (8th Cir.1987) (federal courts are not empowered to review state court proceedings even if a federal claim has been asserted therein); see, 28 U.S.C. Sec. 1257 (1988) (providing for United States Supreme Court review of state court judgments only through writ of certiorari).

Although a federal district court may not possess appellate jurisdiction to review a state court judgment, it may exercise jurisdiction over a general constitutional challenge made in a federal proceeding as long as the constitutional challenge is not "inextricably intertwined" with claims asserted in a state court proceeding. District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482 n. 16, 103 S.Ct. 1303, 1315 n. 16, 75 L.Ed.2d 206 (1983); Blue Cross & Blue Shield of Md. v. Weiner, 868 F.2d 1550, 1554 (11th Cir.1989); Van Sickle v. Holloway, 791 F.2d 1431, 1436 (10th Cir.1986). Under the Feldman doctrine,

the federal claim is inextricably intertwined with the state-court judgment if the federal claim succeeds only to the extent that the state court wrongly decided the issues before it. Where federal relief can only be predicated upon a conviction that the state court was wrong, it is difficult to conceive the federal proceeding as, in substance, anything other than a prohibited appeal of the state-court judgment.

Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 25, 107 S.Ct. 1519, 1533, 95 L.Ed.2d 1 (1987) (Marshall, J., concurring).

Where a litigant attempts to circumvent the requirement of seeking direct review in the United States Supreme Court by casting her lawsuit as a section 1983 action, Feldman's jurisdictional bar applies. Worldwide Church of God v. McNair, 805 F.2d 888, 893 n. 4 (9th Cir.1986); Curry v. Baker, 802 F.2d 1302, 1310 n. 5 (11th Cir.), cert. dismissed, 479 U.S. 1023, 107 S.Ct. 1262, 93 L.Ed.2d 819 (1986); Hale v. Harney, 786 F.2d 688, 690-91 (5th Cir.1986); see Callahan v. Rendlen, 806 F.2d 795, 796 (8th Cir.1986) (federal district courts possess no jurisdiction under...