United States District Court, N.D. Illinois, Eastern Division
November 1, 2005.
BRUCE P. GOLDEN, individually and as next friend of DALE M. GOLDEN, Plaintiffs
NADLER, PRITIKIN, & MIRABELLI, LLC; JAMES B. PRITIKIN; JAMES B. PRITIKIN P.C.; MATTHEW C. ARNOUX; HELEN SIGMAN & ASSOCIATES, LTD.; HELEN SIGMAN; NANCY C. THOMAS; WENDY G. BOWES; OSVALDO RODRIGUEZ Defendants.
The opinion of the court was delivered by: JOAN GOTTSCHALL, District Judge
MEMORANDUM OPINION AND ORDER
Bruce P. Golden ("Golden") sued Nadler, Pritikin & Mirabelli,
LLC ("Nadler"), James B. Pritikin ("Pritikin"), Matthew Arnoux
("Arnoux"), Wendy Bowes ("Bowes"), and Osvaldo Rodriguez
("Rodriguez") for copyright infringement (Count I); Nadler,
Pritikin, Arnoux, and Sigman for civil RICO (Count II); Nadler,
Pritikin, Arnoux, and Sigman under 42 U.S.C. § 1983 (Count III);
and Nadler, Pritikin, Arnoux, Sigman, and Nancy Thomas ("Thomas")
for various state law tort claims (Counts IV-XIV). Nadler,
Pritikin, and Arnoux represent Jody Rosenbaum-Golden
("Rosenbaum") in her petition of dissolution of her marriage to
Golden in the Circuit Court of Cook County. Sigman is the child
representative for Dale Golden ("Dale") in the dissolution of
Before this court are separate motions to dismiss by: Nadler,
Pritikin, and Arnoux (collectively "Nadler"); Sigman; and Thomas.
Bowes has joined in these motions. Also before this court is Golden's motion to strike Nadler's motion to
dismiss. With respect to Count I, the court finds that it must
abstain and a stay is entered as to that count pending the
resolution of the ongoing state proceeding. The motions to
dismiss Counts II and III are granted. After these dismissals, no
federal claims remain, and the court relinquishes jurisdiction
over the remaining state law claims (Counts IV-XIV). The motion
to dismiss Counts IV-XIV is granted.
I. Motion to Strike
Golden has filed a motion to strike Nadler's motion to dismiss
arguing that it references matters outside the complaint. Golden
has conceded, however, that this court may take judicial notice
of matters of public record without converting the motion to
dismiss into a motion for summary judgment. These matters of
public record include public court documents filed in related
cases. Henson v. CSC Credit Serv., 29 F.3d 280, 284 (7th Cir.
1994). To the extent that the motion to dismiss refers to matters
outside the complaint and the public record, the court has not
considered such matters. The motion to strike is denied as moot.
II. Motions to Dismiss
In reviewing a motion to dismiss for failure to state a claim,
the court reviews all facts alleged in the complaint and any
reasonable inferences drawn from those facts in the light most
favorable to the plaintiff. Marshall-Mosby v. Corporate
Receivables, Inc., 205 F.3d 323, 326 (7th Cir. 2000). The court
will grant the motion only if it appears that the plaintiff
cannot prove any set of facts that would entitle the plaintiff to
relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). A. Count I: Federal Copyright Violation
To establish copyright infringement, the plaintiff must show,
among other things, that he has ownership of a valid copyright.
See Feist Publications, Inc. v. Rural Telephone Service Co.,
Inc., 499 U.S. 340, 361 (1991). Federal courts have exclusive
jurisdiction to decide cases of copyright infringement.
28 U.S.C. § 1338 (2000). Therefore, it is the province of the federal court
to decide ownership of federal copyrights.
Golden alleges that he owns copyrights which are registered as
Registration No. TX 6-066-895 and that these defendants are
infringing them by "operating and/or representing an organization
that lists home[s] for sale" in a manner similar to Golden's
business. Because the divorce proceeding is still pending,
however, the court finds that it should abstain from making a
determination of copyright ownership at this time.
Abstention doctrines are the exception to the federal courts'
"virtually unflagging obligation" to hear cases within their
subject matter jurisdiction. Colorado River Water Conservation
Dist. v. U.S., 424 U.S. 800, 817-18 (1976). Burford abstention
can apply when a federal court decision would interfere with a
matter of substantial state concern. See Burford v. Sun Oil
Co., 319 U.S. 315 (1943).
In Burford, the United States Supreme Court concluded that
the district court should have abstained so as not to interfere
with a decision by the Texas Railroad Commission to grant a
permit for drilling oil wells. Burford, 319 U.S. at 334. The
Court noted that the allocation of oil reserves was a matter of
substantial state concern and that the State of Texas had
consolidated review of all claims involving allocation in
specialized state courts. Id. at 326-27. The Court then stated
that exercise of federal jurisdiction would cause confusion that
the state intended to prevent by establishing specialized state courts and would risk
"needless federal conflict with state policy." Id. at 327.
The Supreme Court has recognized that Burford abstention may
be appropriate in cases where "a federal suit [was] filed prior
to the effectuation of a divorce, alimony, or child custody
decree" and where "the [federal] suit depended on a determination
of the status of the parties." Ankenbrandt v. Richards,
504 U.S. 689, 705-06 (1992). It is well-recognized that "[f]amily
relations are a traditional area of state concern." See, e.g.,
Moore v. Sims, 442 U.S. 415, 435 (1979). "[I]n general it is
appropriate for the federal courts to leave delicate issues of
domestic relations to the state courts." Elk Grove Unified Sch.
Dist. v. Newdow, 124 S. Ct. 2301, 2309 (2004). Further,
Burford abstention is appropriate in cases where the federal
claim requires the court to decide ownership of property which
may be determined in the state court divorce proceeding. Farkas
v. D'Oca, 857 F. Supp. 300, 304 (S.D.N.Y. 1994) (holding that
Burford abstention was appropriate where the state divorce
action would determine the property rights of the spouses, which
was a prerequisite to deciding the federal claim); see also
Johnson v. Thomas, 808 F. Supp. 1316, 1320 (W.D. Mich. 1992)
(holding that abstention was appropriate where the tort claims in
federal court on diversity depended on the resolution of the
breach of a domestic partnership agreement).
In this case, the state court in the pending divorce will
determine whether Golden's and Rosenbaum's property is marital
property or separate property, and the court will determine how
the property should be distributed. See 750 ILCS 5/503. This
determination may well affect this court's determination of the
ownership of copyrights at issue, and conversely, if this court
decided ownership prior to the state court's decision, this
court's decision might unnecessarily interfere with the distribution of property in the pending
divorce case. Since Golden seeks primarily monetary relief, this
court will stay this claim pending the resolution of the divorce
case. See Quackenbush v. Allstate Ins. Co., 517 U.S. 706
B. Count II: Civil RICO
Golden's claim under the Racketeering Influenced and Corrupt
Organizations Act ("RICO"), 18 U.S.C. §§ 1962(c) and (d), fails
to state a claim because Golden has not properly pled this count.
"In order to state a viable cause of action under § 1962(c), a
plaintiff must allege (1) conduct (2) of an enterprise (3)
through a pattern (4) of racketeering activity." Slaney v. The
Intern. Amateur Athletic Federation, 244 F.3d 580, 597 (7th Cir.
2001). Nadler argues that none of the predicate acts of
racketeering activity have been adequately pled. The predicate
acts alleged by Golden include violations of 18 U.S.C. § 2319
(criminal copyright infringement), 18 U.S.C. § 1341 (mail fraud),
18 U.S.C. § 1512 (intimidation of witnesses), and
18 U.S.C. § 1951 (Hobbs Act).*fn1 As discussed below, these predicate
acts, with the exception of copyright infringement, have been
improperly pled and therefore cannot support a claim for civil
RICO. To the extent that any claims survive, they are
insufficient to state a cause of action for civil RICO because
they fail to allege a pattern of racketeering activity. 1. Predicate Acts
a. Mail Fraud
Golden alleges that Nadler's communications with Amanda
Williams, Social Security Administration ("SSA"), Francis Parker
School, Anshe Emet Day School, and the Illinois Attorney
Registration and Disciplinary Commission violated
18 U.S.C. § 1341, which criminalizes mail fraud. Allegations of mail fraud
under § 1341 must be pled with particularity under
Fed.R.Civ.P. 9(b). Slaney v. The Intern. Amateur Athletic Federation,
244 F.3d 580, 599 (7th Cir. 2001). "In order to satisfy this
standard, a RICO plaintiff must allege the identity of the person
who made the representation, the time, place and content of the
misrepresentation, and the method by which the misrepresentation
was communicated to the plaintiff." Id. (citing Vicom, Inc. v.
Harbridge Merchant Serv., Inc., 20 F.3d 771, 777 (7th Cir.
In this case, Golden has failed to plead his claims of mail
fraud with particularity. Golden alleges that, "From and after
August 2004, Nadler Pritikin, and Arnoux with Sigman's knowledge
harassed and intimidated Golden's business partner Amanda
Williams with the purpose and intent of having her terminate her
business relationship with Golden." Assuming this is a mail fraud
allegation, it fails to identify the specific time, place, and
content of the alleged misrepresentations.*fn2 Further,
Golden failed to plead the content of the alleged letters to the
SSA, the Francis Parker School, the Anshe Emet Day School, and
the Illinois Attorney Registration and Disciplinary Commission ("ARDC")*fn3 with
particularity. Therefore, the allegations of violations of § 1341
do not satisfy the requirements of Rule 9(b) and cannot form the
basis of the civil RICO claim.
b. Intimidation of Witnesses
Golden alleges that Nadler, Pritikin, and Arnoux's
communications with Amanda Williams, SSA, Francis Parker School,
Anshe Emet Day School, and the ARDC violated 18 U.S.C. § 1512.
This statute, however, does not apply to the facts alleged.
Section 1512 criminalizes harassment or intimidation to prevent
a witness from testifying in an official proceeding. An "official
proceeding" is defined as, "a proceeding before a judge or court
of the United States, a United States magistrate judge, a
bankruptcy judge, a judge of the United States Tax Court, a
special trial judge of the Tax Court, a judge of the United
States Court of Federal Claims, or a Federal grand jury."
18 U.S.C. § 1515(a)(1)(A). While § 1512(f) states that a § 1512
offense does not require that "an official proceeding . . . be
pending or about to be instituted at the time of the offense,"
the requirement in the statute of an official proceeding would
make little sense unless the accused was at least aware of a
contemplated official proceeding or investigation.
In this case, all of the alleged communications occurred
between July and November 2004, but the case in federal court was not instituted until
January 2005. Further, these allegations suggest that the alleged
intimidation or harassment was directed at testimony before the
state court in the pending domestic relations case and not before
any federal tribunal as is required by § 1512.*fn4 Since
Golden has not alleged that any of the complained of conduct
related to an official proceeding as that term is used in § 1512,
Golden cannot base his civil RICO claim on violations of that
c. Hobbs Act
Golden alleges that these communications also violated
18 U.S.C. § 1951 ("Hobbs Act"). Under the Hobbs Act, attempts to
obstruct, delay, or affect interstate commerce by robbery or
extortion are criminal. 18 U.S.C. § 1951(a). "Extortion" in the
Hobbs Act is defined as "the obtaining of property from another,
with his consent, induced by the wrongful use of actual or
threatened force, violence, or fear, or under color of official
right." 18 U.S.C. § 1951(b)(2).
It is difficult for the court to discern what Golden's theory
of extortion is. Drawing all inferences in favor of Golden, he
appears to be claiming that he was the victim of the alleged
extortion. Golden has not alleged that Nadler, Pritikin, Arnoux,
and Sigman used actual or threatened force or violence, and so
the court infers that Golden is claiming that these defendants
acted wrongfully "under color of official right" or through
"fear." As to "official right," Golden makes sporadic references
in Count II to his divorce case, a subpoena, and improper use of
legal process. Golden cannot assert a violation of the Hobbs Act
based on "official right," however, because an "official right" theory cannot be used against a
private citizen; the alleged perpetrator must generally hold some
office. See U.S. v. Warner, 292 F. Supp. 2d 1051, 1066 (N.D.
Ill. 2003) (citing U.S. v. McClain, 934 F.2d 822, 831 (7th Cir.
1991)). Since all of the persons alleged to have committed Hobbs
Act violations are private citizens, these violations cannot be
based on use of "official right."
Golden also states in his response to the motion to dismiss
that his extortion theory is based on fear. For Hobbs Act
extortion based on fear, the victim's fear must be reasonable.
Roger Whitmore's Auto. Services, Inc. v. Lake County, Illinois,
424 F.3d 659, 671 (7th Cir. 2005) (citing Sutherland v.
O'Malley, 882 F.2d 1196, 1202 (7th Cir. 1989)). Fear under the
Hobbs Act can be fear of economic loss. See, e.g., U.S. v.
Lisinski, 728 F.2d 887, 891 (7th Cir. 1984). Additionally, any
Hobbs Act extortion must be designed to take the victim's
property with his consent. Rowell v. Voortman Cookies, Ltd.,
No. 02 C 0681, 2002 WL 31116640, at *7 (N.D. Ill. 2002) (holding
that plaintiff had not alleged a violation of the Hobbs Act where
the property was taken without the plaintiffs' consent).
In this case, the complaint is ambiguous as to what property
the defendants attempted to extort from Golden. Golden alleges
that the defendants harassed Amanda Williams with the purpose of
having her terminate her business relationship with Golden.
Presumably, defendants were not attempting to obtain Golden's
consent to terminate this relationship. Therefore, it is
difficult for the court to discern how this act could constitute
extortion under the Hobbs Act.
Other than a conclusory allegation, Golden does not allege how
the other communications to the SSA, Francis Parker School, Anshe
Emet Day School, and ARDC amounted to extortion under the Hobbs
Act. Golden does not allege what property defendants attempted to obtain from Golden with his consent. Under the
liberal notice pleading standard in federal court, the purpose of
a complaint is to give a defendant notice of the claims against
him and the grounds upon which they rest. See Thompson v. Ill.
Dep't of Prof'l Regulation, 300 F.3d 750, 753 (7th Cir. 2002).
Here, the complaint does not give defendants adequate notice of
the extortion claim. Beyond that, it is not clear to the court,
even drawing all inferences in favor of Golden, how Golden could
prove consistent with his allegations that these defendants
committed criminal extortion under the Hobbs Act.
Although not argued by the parties, the court must also dismiss
this action because Golden has failed to allege a pattern of
racketeering activity.*fn5 A "pattern" requires at least two
acts of racketeering activity during a ten-year period. See
18 U.S.C. § 1961(5). "Congress enacted RICO not out of concern for a
sporadic fraud but out of concern for long-term conduct." Vicom,
Inc. v. Harbridge Merchant Servs., 20 F.3d 771, 779 (7th Cir.
1994). Therefore, the Supreme Court has added the additional
requirement that a plaintiff "must show that the racketeering
predicates are related, and that they amount to or pose a threat
of continued criminal activity." H.J., Inc. v. Northwestern Bell
Tel. Co., 492 U.S. 229, 239 (1989); see also Sedima, S.P.R.L.
v. Imrex Co., Inc., 473 U.S. 479, 497 n. 14 (1985) (describing
these factors as "continuity plus relationship") (quoting S. Rep.
No. 91-617, at 158 (1969)). Continuity "is both a closed- and open-ended concept, referring
either to a closed period of repeated conduct, or to past conduct
that by its nature projects into the future with a threat of
repetition." H.J., Inc., 492 U.S. at 241. "In order to
demonstrate a pattern over a closed period, a RICO plaintiff must
`prove a series of related predicates extending over a
substantial period of time.'" Vicom, Inc. v. Harbridge Merchant
Servs., 20 F.3d 771, 779 (7th Cir. 1994) (quoting H.J., Inc.,
492 U.S. at 242). The Seventh Circuit instructs that the
closed-ended continuity determination should be informed by "the
number and variety of predicate acts and the length of time over
which they were committed, the number of victims, the presence of
separate schemes and the occurrence of distinct injuries."
Vicom, 20 F.3d at 780 (quoting Morgan v. Bank of Waukegan,
804 F.2d 970, 975 (7th Cir. 1986)). On the other hand,
"[o]pen-ended continuity is present when (1) `a specific threat
of repetition' exists, (2) `the predicates are a regular way of
conducting [an] ongoing legitimate business,' or (3) `the
predicates can be attributed to a defendant operating as part of
a long-term association that exists for criminal purposes.'"
Vicom, 20 F.3d at 782 (quoting H.J., Inc.,
492 U.S. at 242-43).
In this case, Golden has failed to allege either closed-ended
or open-ended continuity. First, as to closed-ended continuity,
the alleged predicate acts extend over a period of less than five
months. The Seventh Circuit has stated that a time frame of less
than nine months does not normally satisfy the duration
requirement so as to be a substantial period of time for
closed-end continuity. Vicom, 20 F.3d at 780. Examining the
remaining factors, none weigh in favor of finding closed-end
continuity. The alleged predicate acts include five alleged
communications which Golden alleges constitute mail fraud and
extortion. This is a small number of acts over the short
duration. Further, the only alleged victim is Golden, and perhaps
Golden's business partner Amanda Williams. Golden does not allege separate schemes
that the court can discern. Finally, as best the court can tell,
Golden alleges only one injury, to his business. The court cannot
determine if any other distinct injuries are alleged because
Golden uses vague terms to describe his injuries, such as "Golden
proximately suffered great damage." Golden has not alleged
Golden has also not alleged open-ended continuity. Open-ended
continuity can be established for conduct of a short duration as
long as the plaintiff has alleged a "threat of continuity."
Vicom, 20 F.3d at 782. This threat of continuity can be
established by showing: (1) `a specific threat of repetition'
exists, (2) `the predicates are a regular way of conducting [an]
ongoing legitimate business,' or (3) `the predicates can be
attributed to a defendant operating as part of a long-term
association that exists for criminal purposes.'" Id. (quoting
H.J., Inc., 492 U.S. at 242-43).
The Seventh Circuit has held that schemes that have a natural
ending point cannot support "a specific threat of repetition."
Id. at 782-83. The conduct alleged by Golden has a natural
ending point: the end of the domestic relations case. Golden has
alleged that Nadler, Pritikin, Arnoux, and Sigman communicated
with Amanda Williams, SSA, Francis Parker School, Anshe Emet Day
School, and ARDC and that these communications were an abuse of
legal process. Nadler, Pritikin, and Arnoux represent Golden's
ex-wife in the domestic relations case, and Sigman is the child
representative in that case. Golden has not alleged anything that
would support an inference that any scheme would continue past
the end of the domestic relations case. Since the alleged scheme
has a natural ending point, Golden has not alleged a specific threat of repetition.*fn6
Further, Golden does not allege that the predicates are a
regular way of conducting the defendants' ongoing legitimate
business. Instead, Golden alleges only that the predicates were
carried out in the conduct of the normal business operations of
Nadler and Sigman. There is certainly a distinction between
carrying out fraud, for example, incidental to normal business
operations and fraud being the point of the normal business
operation. See Vicom, 70 F.3d at 783 (holding that the
plaintiff must allege that the predicate acts are a regular way
of conducting the ongoing business). To establish open-ended
continuity, Golden must allege the latter, which he has not done.
The final way that Golden could allege open-ended continuity
would be to show that "a defendant [is] operating as part of a
long-term association that exists for criminal purposes."
Golden's complaint does not suggest this type of association.
Golden has failed to allege a pattern of racketeering activity
sufficient to state a claim for RICO, and the court grants the
motions to dismiss Count II under § 1962(c).
3. Conspiracy under § 1962(d)
Count II also mentions § 1962(d) in passing. Subsection (d) of
§ 1962 makes it "unlawful for any person to conspire to violate
any of the provisions of subsection (a), (b), or (c) of this
section." To state a claim for conspiracy under § 1962(d), a
plaintiff must allege that (1) the defendant agreed to use or
invest racketeering income in an enterprise, or, through a
pattern of racketeering activity, to acquire or maintain an
interest in or control of an enterprise or to participate in the affairs of an enterprise, and (2) the
defendant further agreed that, in furtherance of this goal,
someone would commit at least two predicate acts constituting a
pattern. Slaney v. Int'l Amateur Ath. Fed'n, 244 F.3d 580, 600
(7th Cir. 2001). The complaint is exceedingly vague on any claim
of conspiracy under § 1962(d), and the court concludes that, to
the extent that Golden intended to plead such a claim, he has
failed to satisfy the requirements of notice pleading.
To the extent that Golden has alleged a conspiracy by his
conclusory allegation that "each of them did conspire with the
others to further the predicate acts undertaken by one or more of
the others," this allegation fails to state a claim because, for
the reasons stated above, the predicate acts do not constitute a
pattern. Therefore, the motion to dismiss Count II under §
1962(d) is granted.
C. Count III: 42 U.S.C. § 1983
Golden has sued Sigman under 42 U.S.C. § 1983. Sigman is Dale's
child representative in the state divorce proceeding. Golden has
also sued Nadler, Pritikin, and Arnoux, who represent Golden's
ex-wife in the state divorce proceeding, under § 1983 for acting
in concert with Sigman. Golden alleges that Sigman, Nadler,
Pritikin, and Arnoux violated his rights under the due process
clause of the Fourteenth Amendment and limited his freedom of
association in contravention to the First Amendment.
Specifically, Golden alleges that these defendants violated
Golden's right to the care, custody, and control of Dale.
The court first notes that, to the extent that Golden is
attempting to allege an injury caused by the state court's
determination of child custody, his claim is barred by the
Rooker-Feldman doctrine. See Edwards v. Illinois Bd. of
Admissions to Bar, 261 F.3d 723, 729 (7th Cir. 2001) ("If [the injury alleged by the federal plaintiff resulted
from the state court judgment itself], then the federal courts
lack subject matter jurisdiction, even if the state court
judgment was erroneous or unconstitutional.").*fn7 Assuming
that Golden has alleged an injury distinct from the state court
judgment, Golden cannot state a claim under § 1983 because Sigman
was not a state actor and because Sigman is immune from suit.
1. State Action
The defendants make only passing reference to the requirement
of state action for a claim under § 1983. A § 1983 plaintiff must
show that a defendant acted under color of state law. Tarpley v.
Keistler, 188 F.3d 788, 791 (7th Cir. 1999) (stating that the
two requirements, alternatively called color of law and state
action are "functionally equivalent"). Under the Illinois
Marriage and Dissolution of Marriage Act, courts can appoint an
attorney to serve as a child's representative. 750 ILCS 5/506.
The statute explicitly details the role of a child
[A] child's representative [has a duty] to advocate
what the representative finds to be in the best
interests of the child after reviewing the facts and
circumstances of the case. The child's representative
shall have the same power and authority to take part
in the conduct of the litigation as does an attorney
for a party and shall possess all the powers of
investigation and recommendation as does a guardian
ad litem. The child's representative shall consider,
but not be bound by, the expressed wishes of the
child. A child's representative shall have received
training in child advocacy or shall possess such
experience as determined to be equivalent to such
training by the chief judge of the circuit where the
child's representative has been appointed. The
child's representative shall not disclose
confidential communications made by the child, except
as required by law or by the Rules of Professional
Conduct. The child's representative shall not be
called as a witness regarding the issues set forth in this subsection.
750 ILCS 5/506(a)(3).*fn8
The court finds that Golden's §
1983 claim lacks adequate allegations of state action, and Count
III must also be dismissed on this basis.
Another court in this district has determined that an attorney
appointed to represent a child's interest in a domestic relations
proceeding is not a state actor because the conduct of appointed
counsel does not constitute state action. Offutt v. Kaplan,
884 F. Supp. 1179, 1191-92 (N.D. Ill. 1995). The court agrees
because, although paid by the state, child representatives are
charged with representing the interests of the child and not the
interests of the state.
In Polk County v. Dodson, 454 U.S. 312, 325 (1981), the
Supreme Court held that public defenders are not state actors
"when performing a lawyer's traditional functions as counsel to a
defendant in a criminal proceeding." Additionally, courts have
held that privately retained lawyers are not state actors. See,
e.g., Bilal v. Kaplan, 904 F.2d 14, 15 (8th Cir. 1990) (per
curiam); Jackson v. Walsh, No. 93 C 4692 1993 WL 313359, at *1
(N.D. Ill. Aug. 13, 1993).
Two courts of appeal outside this circuit and several district
courts have held that a child representative or guardian ad litem
does not act under color of state law merely because the
representative was appointed by the state. Kirtley v. Rainey,
326 F.3d 1088, 1094 (9th Cir. 2003); Meeker v. Kercher,
782 F.2d 153, 155 (10th Cir. 1986); see also Offutt,
884 F. Supp. at 1191-92; Arena v. Department of Social Services of Nassau
County, 216 F. Supp. 2d 146, 155 (E.D.N.Y. 2002) (citing cases);
Sophapmysay v. City of Sergeant Bluff, Iowa, 218 F. Supp. 2d 1027, 1043 (N.D. Iowa 2002); Snyder v. Talbot, 836 F. Supp. 19,
24 (D. Me. 1993).*fn9
This court finds that a child representative is not acting
under color of state law merely because the representative is
appointed by the court. Under the Illinois statute, a child
representative is required to act in the best interests of the
child and is not required perform any duties for the state.
Although an appointed attorney can act under color of state law
if the attorney conspires with state officials to deprive the
client of constitutional rights, see Tower v. Glover,
467 U.S. 914, 916 (1984), Golden has alleged only that Sigman conspired
with his ex-wife's private attorneys and not with any state
officials. Therefore, Golden has failed to state a claim under §
1983 because Golden has not alleged state action. The motions to
dismiss Count III is granted.
In addition to Golden's failure to allege state action, Sigman
has absolute immunity in her role as child representative.
Officials seeking absolute immunity for their alleged
unconstitutional conduct have the burden of showing that such
immunity should apply. Harlow v. Fitzgerald, 457 U.S. 800, 808
(1982) (citing Butz v. Economou, 438 U.S. 478, 506 (U.S.
1978)). The Supreme Court has stated that "[a]bsolute immunity is
. . . necessary to assure that judges, advocates, and witnesses
can perform their respective functions without harassment or intimidation." Butz, 438 U.S. at 512. Sigman argues that she is
entitled to absolute immunity in her role as an advocate in the
state court proceeding.
The Supreme Court has identified several factors relevant to
the determination of whether a person is entitled to absolute
immunity: "(a) the need to assure that the individual can perform
his functions without harassment or intimidation; (b) the
presence of safeguards that reduce the need for private damages
actions as a means of controlling unconstitutional conduct; (c)
insulation from political influence; (d) the importance of
precedent; (e) the adversary nature of the process; and (f) the
correctability of error on appeal." Cleavinger v. Saxner,
474 U.S. 193, 202 (1985) (citing Butz, 438 U.S. at 512). These
factors weigh strongly in favor of granting Sigman absolute
immunity. Child custody battles can be emotionally charged, and
child representatives in contentious cases may be subject to
harassment and intimidation if they are not immune from suit.
Further, the dissatisfied party can bring any concerns before the
state court judge if the child representative has acted
inappropriately. While in theory the process should not be
adversarial because all parties in a custody proceeding should be
concerned with the best interests of the child, in practice these
proceedings are often adversarial because the parties disagree as
to what those interests are. These factors show that absolute
immunity is appropriate for child representatives involved in
This finding is in accord with holdings of other courts. In
addressing absolute immunity of guardians ad litem for state
claims, the Seventh Circuit stated:
Although no Illinois case has addressed the issue of
immunity with respect to a [guardian ad litem's
("GAL")] conduct in a judicial proceeding, state
courts which have addressed the general issue of GAL
immunity have granted GALs absolute immunity. Those
courts reasoned that, absent absolute immunity, the
specter of litigation would hang over a GAL's head,
thereby inhibiting a GAL in performing duties
essential to the welfare of the child whom the GAL
represents. We believe that the Illinois Supreme Court would find
this reasoning persuasive and grant a court-appointed
GAL absolute immunity from lawsuits arising out of
statements or conduct intimately associated with the
GAL's judicial duties.
Schieb v. Grant, 22 F.3d 149
, 157 (7th Cir. 1994) (citations
omitted). Courts have used similar reasoning in holding that
guardians ad litem are immune from § 1983 claims. Fleming v.
Asbill, 42 F.3d 886
, 889 (4th Cir. 1994) (citing Kurzawa v.
Mueller, 732 F.2d 1456
, 1458 (6th Cir. 1984) ("A failure to
grant immunity would hamper the duties of a guardian ad litem in
his role as advocate for the child in judicial proceedings.");
McCuen v. Polk County, Iowa, 893 F.2d 172
, 174 (8th Cir. 1990)
(holding that a guardian ad litem was absolutely immune for his
role in preparing and signing motions for orders in court);
Offutt, 884 F. Supp. at 1192; Amaya v. McManus, 04 C 0913,
2005 WL 2334342, at *8 (E.D. Wis. Sept. 23, 2005) (holding that
the guardian ad litem was entitled to absolute immunity); but
see Gardner v. Parson, 874 F.2d 131
, 145 (3rd Cir. 1989)
(holding that immunity should be available only while the
guardian is playing a judicial role). Based on this case law and
the Cleavinger factors, the court finds that Sigman is immune
from suit for her role as a child representative. The motion to
dismiss Count III is granted.
D. Count IV-XIV: State Law Claims
Since no viable federal claims remain, the court relinquishes
jurisdiction over plaintiffs' pendent state claims. Wright v.
Associated Ins. Cos., 29 F.3d 1244, 1251 (7th Cir. 1994) ("The
general rule is that once all federal claims are dismissed before
trial, the district court should relinquish jurisdiction over
pendent state-law claims rather than resolve them on the
merits.").*fn10 The motions to dismiss Counts IV-XIV are granted.
For the foregoing reasons, the court enters a stay as to Count
I. The motions to dismiss all remaining counts (II-XIV) are
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