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Merryday Order

Merryday Order

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Published by Tony Ortega

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Published by: Tony Ortega on Dec 07, 2012
Copyright:Attribution Non-commercial


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Kennan Dandar and Dandar & Dandar, P.A., formerly represented theplaintiff in this wrongful death action, which was resolved by a summary judgmentagainst the plaintiff and affirmed by the Eleventh Circuit. Dandar and his law firmmove (Doc. 243) for sanctions and move to preliminarily and permanently enjoin theChurch of Scientology Flag Service Organization, Inc., along with Scientology’scounsel, from pursuing – in an earlier state court action (the McPherson action) for the wrongful death of a person other than the plaintiff in this action – damagesattributable to attorneys’ fees incurred by Scientology in the defense of this action.
Case 8:09-cv-00264-SDM-EAJ Document 244 Filed 12/07/12 Page 1 of 4 PageID 3521
Dandar’s motion fails to offer a basis on which jurisdiction arises in thisterminated wrongful death action to address the issues that Dandar formulates (or any other issues). A December 6, 2011, order (Doc. 229) grants summary judgmentagainst Dandar’s former client and closes this action. A judgment (Doc. 230) enteredthe following day. The judgment was appealed and affirmed; a mandate issued fromthe court of appeals. Neither the December 6 order nor the final judgment retains jurisdiction in this action for any purpose. This wrongful death action is concluded.Pendency for a time of a wrongful death action in the district court invests the districtcourt with authority to adjudicate the claims presented in the action, but the merepresence of a party in an action fails to invest the district court with a plenary, on-going power of general supervision over a party, much less a power of generalsupervision over a state court in which the party is involved in another action.Dandar presents no basis for the post-judgment jurisdiction he proposes to invoke,and no basis exists. In other words, even assuming the merits of Dandar’s assertionsin the motion, the merits are not subject to assertion by a post-judgment motion inthis closed action.Nonetheless, a brief comment on the merits seems timely. The state courtthreatens Dandar with the assessment of attorneys’ fees incurred by Scientology inthis action because the state court has elected to (erroneously) construe a provision inthe settlement agreement in the McPherson action as a law practice restriction (arestriction uniformly condemned as unethical in law practice in the United States).- 2 -
Case 8:09-cv-00264-SDM-EAJ Document 244 Filed 12/07/12 Page 2 of 4 PageID 3522
The state court next resolved (erroneously) to enforce the construed restriction bypunitive sanctions. I have stated in my orders my preliminary conclusions about thestate court post-judgment proceedings in the McPherson action, which I find, basedon the information presented in this action, acutely troubling. The Eleventh Circuit,although expressing sympathy with my view of the proceedings in state court,reversed the earlier injunction and explicitly declared the matter outside the reach of the federal injunctive power. The mandate of the circuit court of appeals persistsand, fairly construed, precludes the relief that Dandar requests. The Eleventh Circuitstated:
The District Court . . . attribute[s] “the present jurisdictional friction” to[the state court’s] failure to follow a certainly established rule that “a judge should not undertake, directly or indirectly, overtly or through asurrogate, to compel an act by another judge, especially in a different jurisdiction. (The nature of the judicial power permits a judge to order only that which the judge can accomplish through the sundry powers of the office.)” In the District Court’s view, the failure to follow this rulehas resulted in a grave injustice – [the state court’s] imposition of contempt sanctions on Dandar for failure to withdraw from the federalrepresentation when he had no power to do so following the denial of his motion to withdraw. The District Court believes that this injusticeand the “present jurisdictional friction” could have been avoided if [thestate court] had ordered Scientology to ask the District Court todisqualify Dandar in the case before it. Once again, we understand theDistrict Court’s concerns and acknowledge that its concerns arelegitimate ones. The Court fails to explain, however, how the issuespresented by these critiques are distinguishable from the other issues itacknowledges are properly pressed only upon the state judiciary that isauthorized to review [the state court’s] orders. We do not find themdistinguishable and consider it clear under the Anti-Injunction Act caselaw that a district court conviction that a state proceeding has reached or is reaching an erroneous result does not alone warrant an injunctionagainst those proceedings.
- 3 -
Case 8:09-cv-00264-SDM-EAJ Document 244 Filed 12/07/12 Page 3 of 4 PageID 3523

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