United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 09-1659
___________
Patricia Dodson, *
*
Plaintiff - Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
University of Arkansas for Medical *
Sciences, by and through the * [PUBLISHED]
University of Arkansas System Board *
of Trustees; James E. Lindsey, Trustee, *
in his official capacity only; Tim E. *
Hunt, Trustee, in his official capacity *
only; Jane Rogers, Trustee, in her *
official capacity only; Carl Johnson, *
Trustee, in his official capacity only; *
John Ed Anthony, Trustee, in his *
official capacity only; Mike Akin, *
Trustee, in his official capacity only; *
Sam Hilburn, Trustee, in his official *
capacity only; Jim Von Gremp, Trustee, *
in his official capacity only; John *
Tyson, Trustee, in his official capacity *
only; Ben Hyneman, Trustee, in his *
official capacity only; B. Alan Sugg, *
President of the University of Arkansas *
System, in his official capacity only; *
I. Dodd Wilson, M.D., Chancellor, *
University of Arkansas for Medical *
Sciences, in his official and individual
*
capacity; Jackson O. Lay, *
*
Defendants - Appellees. *
___________
Submitted: December 18, 2009
Filed: April 2, 2010
___________
Before RILEY, Chief Judge,1 WOLLMAN, and MELLOY, Circuit Judges.
___________
PER CURIAM.
Appellant Patricia Dodson seeks control over the fate of eighteen cryogenically
frozen embryos, which she created with her ex-husband through the In-Vitro
Fertilization (“IVF”) Program at the University of Arkansas for Medical Sciences
(“UAMS”). Dodson brought this action, alleging that UAMS’s refusal to allow her
control over the disposition of the embryos violates her constitutional rights and
breaches an implied contract. The district court2 dismissed the complaint because
subject matter jurisdiction was lacking pursuant to the Rooker-Feldman doctrine. We
affirm.
1
The Honorable William Jay Riley became Chief Judge of the United States
Court of Appeals for the Eighth Circuit on April 1, 2010.
2
The Honorable James M. Moody, United States District Judge for the Eastern
District of Missouri.
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I. Background
In 1995, Patricia Dodson (formerly Patricia Lay) and her then-husband, Dr.
Jackson Lay, participated in the IVF Program at UAMS with the goal of creating an
embryo to be implanted into Dodson. When they enrolled in the IVF Program,
Dodson and Lay signed a two-page document called a “Control and Disposition of
Embryos Statement” (“the Disposition Statement”). The Disposition Statement
governed the IVF Program’s responsibility for custody of Dodson’s ova, Lay’s sperm,
and any resulting embryos. Moreover, UAMS acknowledged that Dodson and Lay
would control and direct the disposition of the tissues. At any time prior to
implantation in Dodson’s uterus, the couple or the surviving single spouse could direct
that the tissues be destroyed, used for medical research, or transferred to the custody
of another physician or health-care facility. Finally, in the Disposition Statement,
Dodson and Lay agreed that in the event of dissolution of their marriage by court
order, “all control and direction of [their] tissues will be relinquished to the medical
director” of the IVF Program (“the IVF Program Director”). Through the IVF
Program, the couple produced eighteen embryos, which were cryogenically frozen and
stored at UAMS.
Dodson and Lay divorced in 1997. The Chancery Court of Hot Springs County,
Arkansas entered a divorce decree, which incorporated a property settlement
agreement. In paragraph seven of the property settlement agreement, Dodson and Lay
acknowledged and reaffirmed the terms of the Disposition Statement. Furthermore,
they agreed that Dodson “shall have the right to choose from available options, if any,
for disposition as listed in the [Disposition Statement].”
In 1999, Dodson asked UAMS to implant the embryos into her. However,
UAMS would not comply with her request unless she obtained explicit written
consent from Lay. Lay authorized UAMS to either destroy the embryos, use the
embryos for medical research, or allow the embryos to be legally adopted by another
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married couple in connection with the IVF Program. Lay consented to Dodson
choosing among those three options, but he refused consent for implantation into
Dodson. In response, Dodson requested the Hot Springs County Chancery Court to
order that Lay, through the divorce decree, had consented to whatever procedure
Dodson negotiated with UAMS, including implantation into herself. Jackson O. Lay
v. Patricia Dodson, No. E-96-287 (Nov. 10, 1999) (“Dodson I”). The court denied
relief, finding that Lay only consented to those options listed in the Disposition
Statement. Next, the chancery court found under the terms of the Disposition
Statement, all control and direction of the tissues was relinquished to the IVF Program
Director upon the dissolution of the marriage by court order. UAMS was not a party
in Dodson I, and the chancery court noted that it “was not called upon to interpret the
third party contract.”
Subsequently, the IVF Program Director allowed Dodson twenty-one days to
elect one of the three options available under the Disposition Statement: destruction,
medical research, or transfer/adoption by another couple. In January 2000, Dodson
sued UAMS, the UAMS Chancellor, and the IVF Program Director in the Chancery
Court for Pulaski County, Arkansas. Patricia Dodson v. UAMS et al., No. IJ 2000-
0307 (Feb. 15, 2000) (“Dodson II”). Dodson later substituted the UAMS Board of
Trustees for the Chancellor and Director. According to the chancery court’s opinion,
Dodson sought the following relief:
[A] declaratory judgment that 1) her ex-husband consented or
relinquished his right to consent or object to the implantation of certain
embryos into [Dodson], 2) she fulfilled her obligation under the
agreement with UAMS, and, 3) UAMS must fulfill its obligation to
implant the embryos into her. Plaintiff also sought a temporary
restraining order and preliminary injunction prohibiting UAMS from
disposing of or injuring the embryos until a final hearing on the merits.
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The defendants in Dodson II asserted state law sovereign immunity as a
defense. Dodson argued that sovereign immunity did not apply because she sought
to enjoin arbitrary, capricious, and ultra vires actions of state officials. The court
dismissed Dodson’s claim with prejudice. First, the court construed the complaint as
requesting declaratory—not injunctive—relief, and therefore her claim was not
cognizable. Second, the court held that, even if construed as a request for injunctive
relief, Dodson’s claim failed as a matter of law because UAMS’s actions were
“reasonable, sound, and within their authority.” The court explained:
Finally, considering the evidence in the light most favorable to [Dodson],
the court cannot conclude that defendants’ actions are arbitrary or ultra
vires. To the contrary, [Dodson] and Dr. Lay authorized the medical
director of the IVF Program to take control of the embryos in the event
the couple divorced. The medical director has full authority to decide
how to dispose of the embryos. He has been more than reasonable in
allowing [Dodson] to choose which of the three previously agreed-upon
options should be selected. It was reasonable for him to ask [Dodson]
to get her ex-husband’s consent to become the biological father to a child
born to his ex-wife more than two years after they divorced.
Dodson appealed the chancery court’s ruling. The Arkansas Supreme Court dismissed
her appeal in December 2001 for failure to order a transcript of the chancery court
proceedings.
Notwithstanding the court orders in Dodson I and Dodson II, UAMS continued
to send bills to Dodson for embryo storage fees due to an apparent clerical mistake.
In total, Dodson paid the storage fees on a monthly or quarterly basis for nearly eleven
years after her divorce from Lay and for over six years after the Pulaski County
Chancery Court found that she had no right to control the disposition of the embryos.
Then, in February 2008, UAMS notified Dodson that it was closing the embryo
cryopreservation program and that it would transfer the embryos to another facility.
In March 2008, UAMS sent Dodson a consent form required for UAMS to ship the
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frozen embryos elsewhere. Dodson requested UAMS allow her to decide the fate of
the embryos. UAMS informed her that the IVF Program Director retained sole
authority over the embryos and that UAMS was not bound to honor her requests.
In October 2008, Dodson filed this action in federal district court against
UAMS through the Board of Trustees for the University of Arkansas System, the
UAMS President, the UAMS Chancellor, the Trustees individually, and Lay.3 In
Count I, Dodson alleges a claim under 42 U.S.C. § 1983 for violations of her rights
under the Fourth, Fifth, Ninth, and Fourteenth Amendments to the U.S. Constitution
and Amendment Sixty-Eight to the Arkansas State Constitution. Count II is a state-
law cause of action, alleging that UAMS breached an implied contract based upon
Dodson’s payment of storage fees for the embryos. Dodson requested injunctive relief
to prevent UAMS from interfering with her right to control the “potential life” and the
disposition of the embryos.4 Simultaneously, Dodson moved for a temporary
restraining order to prevent UAMS from jeopardizing the safety of the embryos. That
request was denied as moot after UAMS agreed to maintain the embryos in their
current condition pending the resolution of this litigation.
The defendants moved to dismiss the complaint pursuant to Rules 12(b)(1) and
12(h)(3) for lack of subject matter jurisdiction and pursuant to Rule 12(b)(6) for
failure to state a claim upon which relief can be granted. Lay also sought dismissal
because the requested relief would force him to become a biological father against his
will, violating his alleged right to procreative autonomy. The district court granted
the motions to dismiss for lack of subject matter jurisdiction under the
Rooker-Feldman doctrine. In support, the district court found the complaint
3
Dodson included Lay as a defendant in order to determine his “rights and
responsibilities . . . based on his conduct and agreements previously entered.”
4
In this appeal, Dodson clarified that she hopes to donate the embryos for
adoption.
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“inextricably intertwined” with previous state-court proceedings because “[Dodson’s]
claims could succeed only upon a finding that the state courts wrongly decided the
issues.”
In this appeal, Dodson argues that the Rooker-Feldman doctrine is inapplicable
because the Dodson II was decided on the basis of sovereign immunity, a
jurisdictional bar under Arkansas law. In addition, Dodson contends that Rooker-
Feldman is inapplicable because she does not seek to overturn a state court decision.
Appellees maintain that dismissal under Rooker-Feldman was proper, and
alternatively, that Dodson’s claims are barred due to res judicata, collateral estoppel,
the Eleventh Amendment, and failure to plead a right that can be vindicated under
§ 1983.
II. Subject Matter Jurisdiction
A. Law
“The ‘basic theory’ of the Rooker-Feldman doctrine is ‘that only the United
States Supreme Court has been given jurisdiction to review a state-court decision,’ so
federal district courts generally lack subject-matter jurisdiction over ‘attempted
appeals from a state-court judgment.’” Friends of Lake View Sch. Dist. No. 25 v.
Beebe, 578 F.3d 753, 758 (8th Cir. 2009) (quoting 18B Charles Alan Wright et al.,
Federal Practice and Procedure § 4469.1, at 97, 101 (2d ed. 2002)). The doctrine is
narrow. Id. The “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.’” Id. (quoting Exxon Mobil Corp. v. Saudi Basic
Indus. Corp., 544 U.S. 280, 284 (2005)).
This court has expressly cautioned against a state court loser seeking victory
against his adversary in a subsequent § 1983 action in federal court.
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Litigants can choose whether to pursue . . . claims in state or federal
court. Charchenko v. City of Stillwater, 47 F.3d 981, 984 (8th Cir. 1995).
Once a party has litigated in state court, however, he “cannot circumvent
Rooker-Feldman by recasting his or her lawsuit as a [section] 1983
action.” Bechtold v. City of Rosemount, 104 F.3d 1062, 1065 (8th Cir.
1997). In other words, if a litigant has raised and lost claims in state
court, he may not recast those claims under section 1983 and try again.
He must follow the appellate procedure through the state courts and seek
review before the Supreme Court. See Rooker [v. Fid. Trust Co., 263
U.S. 413, 415-16 (1923)].
Prince v. Ark. Bd. Exam’rs in Psychol., 380 F.3d 337, 340 (8th Cir. 2004).
B. Count I
We affirm the dismissal of Count I because Dodson is a “state-court loser[]
complaining of injuries caused by state-court judgments rendered before the district
court proceedings commenced.” Friends of Lake View, 578 F.3d at 758. Although
the precise context of the Hot Springs Chancery Court’s ruling in Dodson I is unclear
from the record before us, it is undisputed the Hot Springs Chancery Court
specifically found as follows: “Under the terms of the [Disposition Statement], upon
the dissolution of the marriage by court order, all control and direction of the tissues
as of January 29, 1997, was relinquished to the [the IVF Program Director].” Any
ruling in the case at bar in Dodson’s favor, i.e., that the federal constitution demands
the return of the embryos to Dodson, would wholly undermine this part of the Hot
Springs Chancery Court’s ruling in Dodson I.
In Dodson II, the Pulaski Chancery Court determined the IVF Program Director
had the right to dispose of the embryos. Even if that determination were technically
obiter dictum, it was not a stray remark on an issue not presented to it. Cf. Stemler v.
Florence, 350 F.3d 578, 589 (6th Cir. 2003) (holding Rooker-Feldman did not
preclude a federal lawsuit, where state court only discussed related claim, which was
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“not an issue that was salient” to the state court, in dicta). This is not a case in which
the state court simply held it lacked jurisdiction and dismissed the plaintiff’s case
without prejudice. Rather, the state court discussed the merits of Dodson’s case
extensively and dismissed Dodson II with prejudice.5
C. Count II
Nothing in the foregoing analysis applies to Count II. All of the conduct
alleged in Count II occurred after Dodson I and II and, therefore, the Rooker-Feldman
doctrine is inapplicable as to Count II. See Exxon, 544 U.S. at 284 (stressing the
Rooker-Feldman doctrine is “confined to cases of the kind from which the doctrine
acquired its name: 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”). Neither the Hot
Springs Chancery Court nor the Pulaski Chancery Court considered Dodson’s
allegations that the defendants continued to bill her for storage of the embryos,
accepted payment therefor, and made statements to her in which defendants indicated
Dodson had the right to dispose of the embryos.
5
It appears there is some tension in our prior precedents as to whether the
Rooker-Feldman doctrine will bar a federal court from exercising jurisdiction when
a state court previously ruled against the plaintiff without reaching the merits of the
dispute. In Friends of Lake View, for example, this court stated “‘the
Rooker-Feldman doctrine does not bar federal claims brought in federal court when
a state court previously presented with the same claims declined to reach their
merits.’” Friends of Lake View, 578 F.3d at 758 (quoting Simes v. Huckabee, 354
F.3d 823, 830 (8th Cir. 2004)). In other cases, however, this court held “[a]pplication
of the Rooker-Feldman doctrine does not depend on a final judgment on the merits of
an issue.” Goetzman v. Agribank, FCB (In re Goetzman), 91 F.3d 1173, 1178 (8th Cir.
1996)).
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With Count I properly dismissed, there are no federal claims in this case and
jurisdiction under 28 U.S.C. § 1331 abates. The Supreme Court has recognized that,
“in the usual case in which all federal-law claims are eliminated before trial, the
balance of factors to be considered under the pendent jurisdiction doctrine—judicial
economy, convenience, fairness, and comity—will point toward declining to exercise
jurisdiction over the remaining state-law claims.” Carnegie-Mellon Univ. v. Cohill,
484 U.S. 343, 350 n.7 (1988). While “this rule is not inflexible,” Grain Land Coop
v. Kar Kim Farms, Inc., 199 F.3d 983, 993 (8th Cir. 1999), it is difficult to say the
district court expended such a substantial amount of time and resources on Dodson’s
case to warrant retention of Count II in federal court. Cf. Murray v. Wal-Mart, Inc.,
874 F.2d 555, 558 (8th Cir. 1989) (noting substantial investment of the district court’s
time and resources may justify continued exercise of supplementary jurisdiction). We
remand for the dismissal of Count II without prejudice.
III. Conclusion
We affirm the district court’s dismissal of Count I under the Rooker-Feldman
doctrine. We remand for dismissal of Count II without prejudice.
MELLOY, Circuit Judge, concurring.
While I agree the dismissal of Count I should be affirmed, I believe the district
court’s reliance on Rooker-Feldman was misplaced because Dodson alleges injuries
caused by UAMS—not injuries caused by a state-court judgment. I would affirm the
district court judgment with regard to Count I under the state-law doctrines of res
judicata and collateral estoppel. I concur in the majority’s remand as to Count II.
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I. Subject Matter Jurisdiction
It is well established that lower federal courts lack subject matter jurisdiction
over straightforward appeals from a state-court judgment even though they may
otherwise be empowered to adjudicate the dispute; such appellate jurisdiction rests
solely with the U.S. Supreme Court. D.C. Court of Appeals v. Feldman, 460 U.S.
462, 482 (1983) (holding that the federal district court lacked subject matter
jurisdiction to review plaintiffs’ complaint “to the extent [they] sought review . . . of
the District of Columbia Court of Appeals’ denial of their petitions”); Rooker v. Fid.
Trust Co., 263 U.S. 413, 415 (1923) (affirming dismissal of federal suit to have state-
court judgment “declared null and void”). Indirect appeals from state-court judgments
have been more controversial, however. In Feldman, the Supreme Court noted that
federal district courts are prohibited from reviewing claims that are “inextricably
intertwined” with a final state-court judgment. 460 U.S. at 482 n.16, 486. Four years
later, Justice Marshall elaborated:
[T]he federal claim is inextricably intertwined with the state-court
judgment if the federal claim succeeds only to the extent that the state
court wrongly decided the issues before it. Where federal relief can only
be predicated upon a conviction that the state court was wrong, it is
difficult to conceive the federal proceeding as, in substance, anything
other than a prohibited appeal of the state-court judgment.
Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 25 (1987) (Marshall, J., concurring).
Several lower federal courts relied on Justice Marshall’s approach to expand Rooker-
Feldman, holding that federal claims were barred because they were “inextricably
intertwined” with state-court judgments.6 Indeed, Rooker-Feldman tripped up
6
See Allison B. Jones, Note, The Rooker-Feldman Doctrine: What does it Mean
to be Inextricably Intertwined?, 56 Duke L.J. 643, 665 (2006) (“With so little clear
guidance from the Supreme Court concerning ‘inextricably intertwined,’ many lower
courts have embraced this lucid definition from Justice Marshall.”); Thomas D. Rowe
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plaintiffs in our circuit even though they did not seek relief from a state-court
judgment and their claims were not identical to claims asserted in state court. See,
e.g., Prince v. Ark. Bd. Exam’rs in Psychol., 380 F.3d 337, 340 (8th Cir. 2004)
(quoted ante at 7–8); Ace Const. v. City of St. Louis, 263 F.3d 831, 833 (8th Cir.
2001) (holding that the plaintiff’s due process challenge to a city ordinance was barred
because it was “inextricably intertwined” with a state-court ruling that plaintiff lacked
standing to challenge the ordinance); Lemonds v. St. Louis County, 222 F.3d 488,
492–93, 495 (8th Cir. 2000) (explaining that Rooker-Feldman bars “indirect attempts
by federal plaintiffs to undermine state court decisions”; quoting Justice Marshall’s
concurrence to affirm dismissal of plaintiff’s “creative attempts to reclothe the failed
due process claim in new constitutional garb.”).
Then, in Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280
(2005), the Supreme Court clarified the “limited circumstances” in which Rooker-
Feldman bars subject matter jurisdiction. Id. at 291. In its introductory remarks, the
unanimous Court noted that the doctrine, which was “[v]ariously interpreted in the
lower courts, . . . has sometimes been construed to extend far beyond the contours of
the Rooker and Feldman cases.” Id. at 283. The Court held that Rooker-Feldman “is
confined to cases of the kind from which the doctrine acquired its name: 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 284. Applied to the complaint in Exxon, the
Court held that Rooker-Feldman does not bar jurisdiction over an action brought by
Jr. & Edward L. Baskauskas, “Inextricably Intertwined” Explicable At Last? Rooker-
Feldman Analysis After the Supreme Court’s Exxon Mobil Decision, 2006 Fed. Cts.
L. Rev. 1, 1 (2006) (“[T]he ‘inextricably intertwined’ formulation . . . had been a
primary test for many lower courts.”); Suzanna Sherry, Judicial Federalism in the
Trenches: The Rooker-Feldman Doctrine in Action, 74 Notre Dame L. Rev. 1085,
1097 (1999) (referring to Justice Marshall’s concurrence as the “most useful—and
frequently quoted—definition of ‘inextricably intertwined’”).
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a state-court defendant against the state-court plaintiff before the state court entered
judgment. Id. at 294. If the state court were to decide the case while the federal
lawsuit is pending, the Court explained, then preclusion law—not Rooker-
Feldman—would govern the disposition of the federal action. Id. at 293. Subject
matter jurisdiction is proper even if “a party attempts to litigate in federal court a
matter previously litigated in state court.” Id.
Eleven months later, in Lance v. Dennis, 546 U.S. 459 (2006) (per curiam), the
Court held that jurisdiction is not barred merely because the plaintiffs were in privity
with a party to a prior state-court case. The Court rejected the privity theory because
it “erroneously conflate[s] preclusion law with Rooker-Feldman.” Id. at 466.
“Rooker-Feldman is not simply preclusion by another name.” Id. Instead,
Rooker-Feldman as a “narrow doctrine” that “applies only . . . where a party in effect
seeks to take an appeal of an unfavorable state-court decision to a lower federal
court.” Id. at 464, 466. “A more expansive Rooker-Feldman rule,” which would
incorporate preclusion principles, “risks turning that limited doctrine into a uniform
federal rule governing the preclusive effect of state-court judgments, contrary to the
Full Faith and Credit Act.” Id. at 466.
We have generally applied a narrower version of Rooker-Feldman since Exxon
and Lance. For example, in Skit International Ltd. v. DAC Technologies of Arkansas,
Inc., 487 F.3d 1154 (8th Cir. 2007), we explained, albeit as dictum, “Rooker-Feldman
is implicated in that subset of cases where the losing party in a state court action
subsequently complains about that judgment and seeks review and rejection of it.” Id.
at 1157. In Riehm v. Engelking, 538 F.3d 952 (8th Cir. 2008), we held that Rooker-
Feldman was inapplicable to a complaint that “alleges unconstitutional actions by [the
defendant] in seeking and executing [an] ex parte order,” rather than “challenging the
state court’s issuance of the ex parte order.” Id. at 965. We quoted the Ninth Circuit,
explaining:
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If a federal plaintiff asserts as a legal wrong an allegedly erroneous
decision by a state court, and seeks relief from a state court judgment
based on that decision, Rooker-Feldman bars subject matter jurisdiction
in federal district court. If, on the other hand, a federal plaintiff asserts
as a legal wrong an allegedly illegal act or omission by an adverse party,
Rooker-Feldman does not bar jurisdiction.
Riehm, 538 F.3d at 965 (quoting Noel v. Hall, 341 F.3d 1148, 1164 (9th Cir. 2003));
see also Friends of Lake View Sch. Dist. Inc. No. 25 v. Beebe, 578 F.3d 753, 758–59
(8th Cir. 2009) (suggesting that the fact that the plaintiffs did “not claim to be
aggrieved by the outcome of [prior state-court] litigation . . . would seem to foreclose
the defendants’ argument that the Rooker-Feldman doctrine applies”); MSK EyEs
LTD v. Wells Fargo Bank, 546 F.3d 533, 539 (8th Cir. 2008) (distinguishing claims
seeking review and rejection of a state-court judgment, which are barred, from claims
that merely attack an adverse party’s actions, which are permitted).7
Dodson’s complaint is distinguishable from the complaints in our post-Exxon
cases. Dodson’s § 1983 claim can succeed only upon a finding that the Arkansas
chancery courts wrongly decided that the IVF Program Director has authority to
control the disposition of the embryos. See ante at 8. Since Exxon, we have not
addressed an indirect appeal where a plaintiff’s claim can succeed only to the extent
that the federal court concludes that a state court wrongly decided a factual or legal
issue. As such, this appeal squarely presents a lingering question in our Rooker-
Feldman jurisprudence, which is whether the “inextricably intertwined” language has
any independent significance.
7
The exception is United States v. Timley, 443 F.3d 615 (8th Cir. 2006), in
which we applied Justice Marshall’s approach and held that the plaintiff’s claims were
not inextricably intertwined with a final state-court judgment. Id. at 628. Surely,
then, Exxon’s more limited formulation of Rooker-Feldman would have produced the
same outcome.
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In the majority of other circuits, the “inextricably intertwined” language in
Feldman does not impose an independent substantive test for indirect appeals from
state-court judgments. The Seventh and Ninth Circuits limited the “inextricably
intertwined” test before Exxon. See Noel, 341 F.3d at 1158; GASH Assocs. v. Vill.
of Rosemont, Ill., 995 F.2d 726, 728 (7th Cir. 1993), quoted in Exxon, 544 U.S. at
293. Following Exxon, several circuits have concluded that the Court abandoned the
“inextricably intertwined” part of the doctrine. The Fourth Circuit explained:
Under Exxon, then, Feldman’s “inextricably intertwined” language does
not create an additional legal test for determining when claims
challenging a state-court decision are barred, but merely states a
conclusion: if the state-court loser seeks redress in the federal district
court for the injury caused by the state-court decision, his federal claim
is, by definition, “inextricably intertwined” with the state-court decision,
and is therefore outside of the jurisdiction of the federal district court.
Davani v. Va. Dep’t of Transp., 434 F.3d 712, 719 (4th Cir. 2006); see also East Hill
Synagogue v. City of Englewood, 240 F. App’x 938, 941 n.1 (3d Cir. 2007)
(unpublished); McCormick v. Braverman, 451 F.3d 382, 394–95 (6th Cir. 2006);
Bolden v. City of Topeka, 441 F.3d 1129, 1143 (10th Cir. 2006); States Res. Corp.
v. Architectural Team, Inc., 433 F.3d 73, 79–80 (1st Cir. 2005); Hoblock v. Albany
County Bd. of Elections, 422 F.3d 77, 86–87 (2d Cir. 2005).
In accordance with the view expressed by a majority of circuits, I would hold
that Rooker-Feldman is limited “to the setting in which it arose.” 18B Charles Alan
Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice & Procedure, §
4469.1 at 13 (2d ed., Supp. 2009). “If a federal plaintiff presents some independent
claim, albeit one that denies a legal conclusion that a state court has reached in a
case to which he was a party, then there is jurisdiction and state law determines
whether the defendant prevails under principles of preclusion.” Exxon, 544 U.S. at
293 (internal alterations omitted, emphasis added) (quoting GASH Assocs., 995 F.2d
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at 728); see also Lance, 546 U.S. at 466 (reiterating that lower courts should not
incorporate preclusion principles into Rooker-Feldman). Rooker-Feldman does not
bar jurisdiction merely because a federal claim is “inextricably intertwined” with a
state-court judgment, i.e., because the federal claim is premised on a position that
contradicts a state court’s decision. Subject matter jurisdiction is improper, and thus
the claims are inextricably intertwined, only for “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.” Exxon, 544 U.S. at 284. To be sure, several courts implicitly disagree
with this conclusion by continuing to apply the “more expansive Rooker-Feldman
rule.” Lance, 546 U.S. at 466.8 However, I would decline to follow these cases
because they either rely on pre-Exxon authority or fail to reconcile their holdings with
the limiting language in Exxon and Lance.
The Court would hold that Rooker-Feldman applies to Count I because any
ruling in Dodson’s favor would “wholly undermine” state-court findings in Dodson
I and Dodson II. Ante at 8. This conclusion, in substance, applies Justice Marshall’s
approach to Rooker-Feldman, albeit without using the “inextricably intertwined”
language. I would hold that the district erred by dismissing the complaint as
8
See, e.g., In re Madera, 586 F.3d 228, 232 (3d Cir. 2009) (holding that Rooker-
Feldman barred a debtor’s action to rescind a mortgage because it was “inextricably
intertwined” with a state court’s foreclosure judgment, which was premised on the
existence of a valid mortgage); MAPP Const., LLC v. M&R Drywall, Inc., 294 F.
App’x 89, 91 (5th Cir. 2008) (unpublished per curiam) (holding that Rooker-Feldman
precludes jurisdiction over a federal lawsuit to compel arbitration under the Federal
Arbitration Act because the action was “inextricably intertwined” with the plaintiff’s
failed state-law action to compel arbitration under the Louisiana Arbitration Act);
Indus. Comm’n & Elec., Inc. v. Monroe County, 134 F. App’x 314, 317–19 (11th Cir.
2005) (unpublished per curiam) (affirming dismissal under Rooker-Feldman because
each cause of action was “‘inextricably intertwined’ with parallel allegations
contained in [the plaintiff’s] former state court complaint”).
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“inextricably intertwined” with previous state-court judgments, thereby ignoring
Exxon’s limitation on Rooker-Feldman. Dodson does not request relief against a
state-court judgment, and importantly, the complaint alleges that UAMS—not the
Arkansas chancery courts—is the source of Dodson’s injuries. Rooker-Feldman
would apply only if Dodson were “complaining of injuries caused by state-court
judgments.” Exxon, 544 U.S. at 284 (emphasis added); see also Riehm, 538 F.3d at
964; Skit Int’l, 487 F.3d at 1157. Accordingly, I would hold that Rooker-Feldman
does not bar the district court from exercising subject matter jurisdiction over
Dodson’s complaint. My analysis of Dodson’s claims continues, however, because
Appellees assert several other justifications for the district court judgment, and we
may affirm on any basis supported in the record. Friends of Lake View, 578 F.3d at
758.
II. Preclusion
Appellees argue that Dodson I and II preclude Dodson’s claims under the state-
law doctrines of res judicata and collateral estoppel. Preclusion is a question of law,
B & B Hardware, Inc. v. Hargis Indus., Inc., 569 F.3d 383, 387 (8th Cir. 2009), cert.
denied, — S. Ct. —, 2010 WL 58424 (2010), and a potential basis for dismissal under
Federal Rule of Civil Procedure 12(b)(6), Yankton Sioux Tribe v. U.S. Dep’t of
Health & Human Servs., 533 F.3d 634, 643–44 (8th Cir. 2008) (affirming dismissal
based on res judicata). Arkansas law governs whether the preclusion doctrines apply
here. Lance, 546 U.S. at 466. We must accept Dodson’s factual allegations as true,
and we may affirm the district court judgment “only if it is clear that no relief could
be granted under any set of facts that could be proved consistent with the allegations.”
Hishon v. King & Spalding, 467 U.S. 69, 73 (1984).
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A. Res Judicata
Dodson I precludes Dodson’s claims to the extent she has requested any relief
against Lay. The Hot Springs County Chancery Court adjudicated Lay’s rights and
responsibilities with regard to the embryos, and res judicata prohibits Dodson from
relitigating those claims or pursuing other similar claims against Lay now. See Cox
v. Keahey, 133 S.W.3d 430, 435 (Ark. Ct. App. 2003) (res judicata bars a subsequent
lawsuit “based on the same events as the subject matter of a previous lawsuit,” even
though the later lawsuit “raises new legal issues and seeks additional remedies.”).
For UAMS, however, res judicata is unhelpful. “Res judicata bars relitigation
of a claim in a subsequent suit when [among other elements] . . . both suits involve the
same parties or their privies.” Powell v. Lane, 289 S.W.3d 440, 444 (Ark. 2008).
UAMS was neither a party to nor privy to Dodson I, and therefore the Dodson I does
not preclude Dodson’s claims against UAMS under the doctrine of res judicata. The
parties disagree about whether res judicata applies to Dodson II. Dodson argues that
the chancery court’s dismissal pursuant to sovereign immunity was neither a final
judgment on the merits nor based upon proper jurisdiction, which are both elements
of res judicata under Arkansas law. Id. We need not reach these questions though,
as Dodson’s claims against UAMS are otherwise barred.
B. Collateral Estoppel
Under collateral estoppel, also known as issue preclusion, a state court’s
determination is conclusive in a subsequent proceeding if four elements are satisfied:
“(1) the issue sought to be precluded must be the same as that involved in the prior
litigation; (2) that issue must have been actually litigated; (3) the issue must have been
determined by a valid and final judgment; and (4) the determination must have been
essential to the judgment.” Id. This doctrine precludes Dodson from relitigating
issues of law and fact decided in Dodson I and II so long as she “had a full and fair
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opportunity to litigate the issue in question.” Bradley Ventures, Inc. v. Farm Bureau
Mut. Ins. Co. of Ark., 264 S.W.3d 485, 490 (Ark. 2007).
UAMS maintains that collateral estoppel applies to Dodson I and II, barring
both of Dodson’s pending claims, but our discussion is considerably narrower. First,
I would set aside Dodson I because I am uncertain that the court’s relevant finding
was “essential to the judgment.” Powell, 289 S.W.3d at 444.9 Second, I would set
aside Count II, which is Dodson’s implied-contract claim. Importantly, Count II is
premised on UAMS’s conduct after Dodson II, i.e., sending Dodson bills for the
embryo storage fees, and therefore cannot be precluded by the earlier chancery court
decision. See Ripplin Shoals Land Co. v. U.S. Army Corps of Eng’rs, 440 F.3d 1038,
1044 (8th Cir. 2006) (holding that a prior judgment regarding a permit to modify an
existing bridge does not preclude a plaintiff from challenging a decision on a new
application describing and a different bridge design); cf. id. at 1042 (“[R]es judicata
does not apply to claims that did not exist when the first suit was filed.”). Thus, my
discussion is limited to the interaction between Dodson II and the pending § 1983
claim, and more specifically, the chancery court’s unambiguous findings in Dodson
II that, upon dissolution of Dodson and Lay’s marriage by court order, Dodson
relinquished her right to control the disposition of the embryos and that the IVF
Program Director acquired “full authority to decide how to dispose of the embryos.”
Dodson argues that the issues of Dodson’s rights and of UAMS’s authority
were not “actually litigated” in Dodson II because the chancery court dismissed her
complaint for lack of jurisdiction under the state-law doctrine of sovereign immunity.
9
The Hot Springs County Chancery Court explicitly stated that all control over
the embryos transferred to the IVF Program Director upon Dodson and Lay’s divorce.
Dodson I was an action against Lay, however, and the chancery court could have
clarified Dodson’s rights relative to Lay without addressing her rights relative to the
IVF Program Director. Notably, the chancery court stated it was “not called upon to
interpret the third party contract.”
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I disagree. Under Arkansas law, “only two things” are required for an issue to be
“actually litigated.” Powell, 289 S.W.3d at 447 (quotation omitted). The test is
(1) whether “the issue was effectively raised in the pleadings, or through development
of the evidence, and argument at trial or on motion,” and (2) whether “the losing party
had a full and fair opportunity procedurally, substantively, or evidentially to contest
the issue in a prior proceeding.” Id. at 446. Nothing indicates that the issue of
UAMS’s right to control the embryos was not effectively raised or that Dodson lacked
a “full and fair opportunity” to contest the issue. Importantly, the chancery court was
forced to address the IVF Program Director’s authority (or lack thereof) because
Dodson raised the issue—she argued that UAMS’s actions were arbitrary and ultra
vires. The parties submitted briefs and exhibits to the court, the court conducted a
hearing, and the court evaluated the evidence in the record.
Without any support, Dodson claims that proper jurisdiction is necessary for an
issue to be “actually litigated.” However, Dodson’s argument confuses the “actually
litigated” standard with the outcome of a court’s inquiry to determine its own
jurisdiction. Contrary to Dodson’s suggestion, collateral estoppel can bar relitigation
of an issue even if the first court’s eventual decision is that it lacks jurisdiction to
reach the merits. See Gavilan-Cuate v. Yetter, 276 F.3d 418, 420 (8th Cir. 2002)
(“Though a jurisdictional determination is not usually binding on future proceedings,
it is binding as to issues that are addressed by the Court in determining the
jurisdictional question.”); see also Durfee v. Duke, 375 U.S. 106, 111 (1963).
Dodson concedes that Dodson II was a “valid and final judgment,” and
therefore the last question is whether the court’s findings about Dodson’s rights and
UAMS’s authority were essential to its judgment in Dodson II. The chancery court
first construed Dodson’s claim as one for declaratory relief and explained that such
a claim is not cognizable under Arkansas law. The court then noted, however, that it
was obligated to resolve all doubts in Dodson’s favor, and it went on to consider the
complaint as a request for permanent injunctive relief. The parties briefed and argued
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the issue of whether UAMS’s actions were arbitrary or ultra vires, and the court
devoted at least eight pages of its opinion to that question. Given this background,
and the fact that Dodson was the party pushing the court to address the question of
UAMS’s authority, I would conclude that the finding about Dodson’s relinquishment
of authority to the IVF Program Director was essential to judgment in Dodson II.
Barring Dodson from relitigating that issue would not offend “the primary purposes
of collateral estoppel,” which are “to preserve the integrity of the judicial system,
promote judicial economy, and protect litigants from harassment by vexatious
litigation.” Riverdale Dev. Co., LLC v. Ruffin Bldg. Sys., Inc., 146 S.W.3d 852, 858
(Ark. 2004) (quotation omitted).
As all of the elements of collateral estoppel are satisfied, Dodson II precludes
relitigation of whether, upon dissolution of Dodson and Lay’s marriage, UAMS
acquired full authority to control the disposition of the embryos.10 That finding
forecloses Dodson from establishing a constitutional deprivation based on her alleged
right to control the disposition of her embryos. See Davis v. Davis, 842 S.W.2d 588,
604 (Tenn. 1992) (holding that disputes involving the disposition of frozen embryos
should be resolved first by looking at progenitors’ prior agreement concerning
disposition). The bulk of Dodson’s § 1983 claim is founded upon that alleged
constitutional violation. To the extent she relies on an alleged constitutional right to
control the disposition of her embryos, it is clear that no relief can be granted and
therefore dismissal was proper pursuant to Rule 12(b)(6).
However, the § 1983 claim has another dimension. Dodson asserts that, by
sending her bills for the embryo storage fees for nearly seven years, UAMS
10
Dodson II’s findings are conclusive notwithstanding Dodson’s interpretation
of the Disposition Statement. Dodson suggests that the Disposition Statement is
ambiguous, because the term “tissues” does not include embryos. However, this
interpretative argument is exactly the type of re-litigation of issues that collateral
estoppel is meant to avoid.
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recognized Dodson’s property interest in the embryos and her constitutional right to
decide the disposition of the embryos. I agree that even if Dodson II is conclusive,
Dodson alleges a constitutional deprivation, which, like the implied contract claim,
goes beyond the scope of Dodson II. Nonetheless, dismissal of Dodson’s entire
§ 1983 claim was proper because relief cannot be granted on the basis of the embryo
storage fees. Surely, in some situations, a constitutionally protected property interest
can arise out of an implied contract. See Winegar v. Des Moines Indep. Comm. Sch.
Dist., 20 F.3d 895, 899 (8th Cir. 1994). But such an interest cannot arise from a
“unilateral expectation,” Bd. of Regents of State Coll. v. Roth, 408 U.S. 564, 577
(1972), and the terms of a contract must provide “a legitimate claim of entitlement”
to an individual. Meyer v. City of Joplin, 281 F.3d 759, 761 (8th Cir. 2002) (per
curiam). Here, Dodson’s alleged property interest is based solely on her own
expectation from paying the storage fees. There is no allegation that UAMS rescinded
or waived its long-held position that the IVF Program Director retained full authority
over the embryos. At best, Dodson alleges facts that support an inference of
administrative negligence, but not a constitutional entitlement. Dodson cannot use
UAMS’s apparent billing error to revive the alleged constitutional interest that she
relinquished upon her divorce. Such a holding would stretch § 1983 too far. See San
Bernardino Physicians’ Serv. Med. Group, Inc. v. County of San Bernardino, 825 F.2d
1404, 1408 (9th Cir. 1987) (“It is neither workable nor within the intent of section
1983 to convert every breach of contract claim against a state into a federal claim.”).
Thus, even if we distill a version of Dodson’s § 1983 claim based on UAMS’s
conduct after Dodson II, dismissal was proper pursuant to Rule 12(b)(6).
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