Case 8:09-cv-00264-SDM-EAJ Document 244

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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION ESTATE OF KYLE THOMAS BRENNAN, Plaintiff, v. CHURCH OF SCIENTOLOGY FLAG SERVICE ORGANIZATION, INC.; DENISE GENTILE; GERALD GENTILE; and THOMAS BRENNAN, Defendants. / CASE NO. 8:09-cv-264-T-23EAJ

ORDER Kennan Dandar and Dandar & Dandar, P.A., formerly represented the plaintiff in this wrongful death action, which was resolved by a summary judgment against the plaintiff and affirmed by the Eleventh Circuit. Dandar and his law firm move (Doc. 243) for sanctions and move to preliminarily and permanently enjoin the Church of Scientology Flag Service Organization, Inc., along with Scientologys counsel, 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 damages attributable to attorneys fees incurred by Scientology in the defense of this action.

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Dandars motion fails to offer a basis on which jurisdiction arises in this terminated wrongful death action to address the issues that Dandar formulates (or any other issues). A December 6, 2011, order (Doc. 229) grants summary judgment against Dandars former client and closes this action. A judgment (Doc. 230) entered the following day. The judgment was appealed and affirmed; a mandate issued from the 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 district court with authority to adjudicate the claims presented in the action, but the mere presence of a party in an action fails to invest the district court with a plenary, ongoing power of general supervision over a party, much less a power of general supervision 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 Dandars assertions in the motion, the merits are not subject to assertion by a post-judgment motion in this closed action. Nonetheless, a brief comment on the merits seems timely. The state court threatens Dandar with the assessment of attorneys fees incurred by Scientology in this action because the state court has elected to (erroneously) construe a provision in the settlement agreement in the McPherson action as a law practice restriction (a restriction uniformly condemned as unethical in law practice in the United States). -2-

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The state court next resolved (erroneously) to enforce the construed restriction by punitive sanctions. I have stated in my orders my preliminary conclusions about the state court post-judgment proceedings in the McPherson action, which I find, based on 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 persists and, fairly construed, precludes the relief that Dandar requests. The Eleventh Circuit stated:
The District Court . . . attribute[s] the present jurisdictional friction to [the state courts] failure to follow a certainly established rule that a judge should not undertake, directly or indirectly, overtly or through a surrogate, 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 Courts view, the failure to follow this rule has resulted in a grave injustice [the state courts] imposition of contempt sanctions on Dandar for failure to withdraw from the federal representation when he had no power to do so following the denial of his motion to withdraw. The District Court believes that this injustice and the present jurisdictional friction could have been avoided if [the state court] had ordered Scientology to ask the District Court to disqualify Dandar in the case before it. Once again, we understand the District Courts concerns and acknowledge that its concerns are legitimate ones. The Court fails to explain, however, how the issues presented by these critiques are distinguishable from the other issues it acknowledges are properly pressed only upon the state judiciary that is authorized to review [the state courts] orders. We do not find them distinguishable and consider it clear under the Anti-Injunction Act case law that a district court conviction that a state proceeding has reached or is reaching an erroneous result does not alone warrant an injunction against those proceedings.

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(Doc. 220 at 21-22). The district court is bound by the circuit courts mandate, whether gloriously right or egregiously wrong. As stated by this court in the October 3, 2011, order:
In sum and by virtue of the circuit courts mandate, the federal judiciary acquires an active partnership in the punitive enforcement of an unlawful and unethical restriction on the practice of law. Surprising, but true.

(Doc. 221 at 3-4) Dandars objections to the state judges orders are, consistent with the circuit courts mandate, properly pressed only upon the state judiciary that is authorized to review [the state courts] orders. (Doc. 220 at 22). The motion (Doc. 243) is DENIED. ORDERED in Tampa, Florida, on December 7, 2012.

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