Swenson v. Vedder

• Docket Number: CIVIL 1:22-CV-00635
• Decision Date: 28 March 2023
• Parties: KENNETH SWENSON, I, et al., Plaintiffs, v. JUDGE CLYDE VEDDER, et al., Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

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KENNETH SWENSON, I, et al., Plaintiffs, v. JUDGE CLYDE VEDDER, et al., Defendants.

CIVIL No. 1:22-CV-00635

United States District Court, M.D. Pennsylvania

March 28, 2023

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,^[1] 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.

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...