The opinion of the court was delivered by: DAVID COAR, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Michael Lee-Kathrein ("Lee-Kathrein" or "Plaintiff")
filed a complaint on November 12, 2004, against Defendants Judge
Brigid M. McGrath ("McGrath"), Michael Monar ("Monar"), Daniel V.
Kinsella ("Kinsella"), Jeffrey R. Rosenberg ("Rosenberg"), and
Schuyler, Roche & Zwirner, P.C. ("SRZ") (collectively
"Defendants"). Plaintiff alleged that he was being deprived of
equal protection, due process, property, and meaningful access to
the courts via a conspiracy engaged between the defendants. On
January 10, 2005, Plaintiff filed a First Amended Complaint,
adding Judge Paddy H. McNamara as an additional named defendant.
First Am. Compl. The complaint arises from alleged violations of
Plaintiff's civil rights in relation to an ongoing lawsuit in the
Law Division of the Circuit Court of Cook County, Illinois (case
number 03 CH 18899), over which Judge McGrath is presiding.
Defendant Monar is the plaintiff in the state court case and
defendants Kinsella and Rosenberg, along with their law firm, defendant SRZ, represent him. Plaintiff alleges that the
defendants have conspired to "milk" the litigation when its sole
purpose is to deprive him of his time and money and violate his
rights to due process, equal protection, and meaningful access to
the courts. Plaintiff contends that Judge McGrath "knows that
case 03 CH 18899 has been brought by Monar as a harassment of
Lee, and as a continuation and an extension of a divorce case"
involving Lee-Kathrein and his former wife, who is presently
married to Monar. In addition, Plaintiff contends that Judge
McGrath displayed bias against him and violated his civil rights
during a Rule to Show Cause hearing in Case Number 03 CH 18899.
He further alleges that Judge McNamara, "through rulings in her
court that have no basis in law or fact," is retaliating against
Plaintiff because he has brought the instant lawsuit against
This matter comes before the court on defendants' motions to
dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and
In reviewing a motion to dismiss for lack of subject matter
jurisdiction under Federal Rule of Civil Procedure 12(b)(1), the
district court must accept all well-pleaded factual allegations
as true and draw all reasonable inferences in favor of the
plaintiff. See Transit Exp. Inc. v. Ettinger, 246 F.3d 1018,
1023 (7th Cir. 2001). On a motion to dismiss under Rule 12(b)(1),
the plaintiff bears the burden of establishing that the jurisdictional
requirements have been met. Kontos v. Dep't of Labor, 826 F.2d 573, 576
(7th Cir. 1987). When a party moves for dismissal under Rule 12(b)(1), the nonmoving party must provide
competent proof of jurisdictional facts to support its
allegations. Thomason v. Gaskill, 315 U.S. 442, 446 (1942);
Kontos, 826 F.2d at 576.
On a motion to dismiss for failure to state a claim, the Court
again accepts all wellpleaded allegations in the plaintiff's
Complaint as true. Fed.R.Civ.P. 12(b)(6). The purpose of a
12(b)(6) motion is to decide the adequacy of the complaint, not
to determine the merits of the case. Gibson v. City of Chicago,
910 F.2d 1510, 1520 (7th Cir. 1990) (citation omitted). A
complaint should not be dismissed "unless it appears beyond all
doubt that the plaintiff can prove no set of facts in support of
his claim which would entitle him to relief." Conley v. Gibson,
355 U.S. 41, 45-46 (1957).
Defendants Monar, Kinsella, Rosenberg, and SRZ contend that
this court is precluded from exercising subject matter
jurisdiction over the instant litigation because of the
Rooker-Feldman doctrine. District of Columbia Court of
Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v. Fidelity
Trust Co., 263 U.S. 413 (1923). They contend that the
Rooker-Feldman doctrine and its Seventh Circuit progeny,
Schmitt v. Schmitt, 324 F.3d 484 (7th Cir. 2003), and
Wright v. Tackett, 39 F.3d 155 (7th Cir. 1994), completely
preclude this court from exercising jurisdiction over any of the
claims raised in Plaintiff's First Amended Complaint.
The United States Supreme Court recently addressed the
boundaries and applicability of the Rooker-Feldman doctrine in
Exxon Mobil Corporation v. Saudi Basic Industries Corporation,
___ U.S. ___, 125 S. Ct. 1517, 161 L. Ed.2d 454 (2005). The Court
held that the Rooker-Feldman doctrine is confined to "cases
brought by state-court losers complaining of injuries caused by state-court judgments rendered before the
district court proceedings commenced and inviting district court
review and rejection of those judgments." Id. at 1521-22. The
Court clearly delineated the limited circumstances in which its
appellate jurisdiction over state-court judgments,
28 U.S.C. § 1257, precludes a United States district court from exercising
otherwise authorized subject matter jurisdiction. See, e.g.,
28 U.S.C. §§ 1330-32. In the case at bar, the state court proceeding
has not yet achieved final judgment. Under the reasoning set forth in Exxon
Mobil, therefore, the Rooker-Feldman doctrine does not apply.
This case is a federal lawsuit related to events in ongoing
state litigation. In Exxon Mobil, the Supreme Court noted that
it had "repeatedly held that `the pendency of an action in the
state court is no bar to proceedings concerning the same matter
in the Federal court having jurisdiction.'" Exxon Mobil,
125 S. Ct. at 1526-27 (quoting McClellan v. Carland, 217 U.S. 268, 282
(1910)). The federal court must determine, however, if it does
have jurisdiction. Such a determination requires careful
consideration of comity and abstention doctrines requiring the
federal court to stay or dismiss the federal action in favor of
the state-court litigation. See, e.g., Colorado River Water
Conservation Dist. v. United States, 424 U.S. 800 (1976);
Younger v. Harris, 401 U.S. 37 (1971); Burford v. Sun Oil
Co., 319 U.S. 315 (1943); Railroad Comm'n of Tex. v. Pullman
Co., 312 U.S. 496 (1941).
Defendants ask this court to refrain from acting pursuant to
Younger abstention, but it is not clear that Younger is
applicable in this situation. Plaintiff has not asked the federal
court to enjoin the state court proceedings but rather has
brought a separate, albeit closely related, action in federal
court. To the extent that Plaintiff is implicitly asking this
court to enjoin the state court proceedings, Younger abstention
almost certainly would apply. Plaintiff states that the pending state court litigation is "a continuation and an extension of a
divorce case." First Am. Compl., at ¶ 11. Plaintiff's former wife
is currently married to defendant Monar. Id. Thus, the state
court proceeding implicates family law, an area of traditional
state regulation, and federal court abstention would be proper.
See Mansell v. Mansell, 490 U.S. 581 (1989).
The public policy underlying Younger, however, is germane to
this situation. Both the interests of comity and our system of
federalism support the "longstanding public policy against
federal court interference with state court proceedings."
Younger v. Harris, 401 U.S. 37, 43 (1971). Under the doctrine
of comity, a court with proper jurisdiction over a cause of
action should nonetheless defer to a court of "another
sovereignty with concurrent powers, and already cognizant of the
litigation," until that court has ruled upon the matter. Rose v.
Lundy, 455 U.S. 509, 518 (1982). "Cooperation and comity, not
competition and conflict, are essential to the federal design."
Ruhrgas, A.G. v. Marathon Oil Co., 526 U.S. 574, 576 (1999).
Plaintiff's complaint asks this court to convene a grand jury
for the purpose of investigating alleged criminal acts in the
state court proceeding. Plaintiff is correct that a federal
district court can convene a grand jury; he misconstrues the
procedure for doing so. The prosecutor, in this case the United
States Attorney, is the party who requests a grand jury for
alleged violations of federal law. See, e.g., Douglas P.
Currier, Note, The Exercise of Supervisory Powers to Dismiss a
Grand Jury Indictment A Basis for Curbing Prosecutorial
Misconduct, 45 OHIO STATE L.J. 1077, 1079 (1984). The Justice
Department is charged with enforcing federal criminal law. See,
e.g., United States v. Armstrong, 517 U.S. 456, 464 (1996). An
individual "lacks a judicially cognizable interest in the
prosecution or nonprosecution of another." Linda R.S. v. Richard
D., 410 U.S. 614, 619 (1973). Plaintiff has not demonstrated that he will not have an
adequate opportunity to raise his constitutional challenges at
the state court. See Ohio Civil Rights Comm'n v. Dayton
Christian School, 477 U.S. 619 (1986); Moore v. ...