Great Western Mining & Mineral Co. v. Fox Rothschild LLP

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 09-3189

GREAT WESTERN MINING &
MINERAL COMPANY,
Assignee of HRC/NJ, Inc., Assignee of Active Entertainment
Inc.,

Appellant

v.

FOX ROTHSCHILD LLP;
THOMAS D. PARADISE, Esq., Partner, Fox Rothschild
LLP;
ROBERT S. TINTNER, Esq., Partner, Fox Rothschild LLP;
ADR OPTIONS, INC.;
THOMAS B. RUTTER, Esq., CEO, ADR Options

On Appeal from the District Court
for the District of New Jersey
(No. 08-cv-1093)
District Judge: Honorable William H. Walls
 Argued March 25, 2010

Before: McKEE, Chief Judge, and FUENTES and
CHAGARES, Circuit Judges

(Opinion Filed: August 5, 2010)

Benjamin C. Weiner, Esq. (ARGUED)
19 Countryside Drive
Livingston, NJ 07039

Counsel for Appellant

Thomas A. Cuniff, Esq.(ARGUED)
Fox Rothschild LLP
997 Lenox Drive
Building Three
Lawrenceville, NJ 08648

Counsel for Appellees

OPINION OF THE COURT

FUENTES, Circuit Judge:
Having lost in state court, Great Western Mining &

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Mineral Company (“Great Western” ) brought a civil rights
action in federal court under 42 U.S.C. § 1983. Great Western
alleges that its state-court losses were the result of a “corrupt
conspiracy” between the named defendants and certain
members of the Pennsylvania state judiciary to exchange
favorable rulings for future employment as arbitrators with
ADR Options, Inc. (“ADR Options”), an alternative dispute
resolution entity. The District Court dismissed Great Western’s
complaint for failure to state a claim and denied its motion for
reconsideration and motions for leave to amend its complaint.
As a threshold matter, we address Defendants’
contention that the Rooker-Feldman doctrine precludes the
exercise of subject matter jurisdiction over this action. We
disagree, as Great Western is not “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 Mobil Corp. v. Saudi
Basic Indus. Corp., 544 U.S. 280, 284 (2005). Rather, Great
Western asserts an independent constitutional claim that the
alleged conspiracy violated its right to be heard in an impartial
forum. Turning to the merits, we conclude that granting Great
Western leave to amend would have proved futile as even the
final version of its complaint failed to plead facts plausibly
suggesting a conspiratorial agreement. Accordingly, we will
affirm.
I.
This case originates out of a dispute involving a
miniature golf course in which Active Entertainment, Inc.

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(“Active”) was the losing party.1 Active retained Brownstein &
Vitale, P.C. (“B&V”) to represent it in litigation against an
entity that Active had hired to build a miniature golf course.
Dissatisfied with the damages awarded in that litigation, Active
brought a malpractice suit against its counsel, Gary Brownstein,
Marc D. Vitale, and B&V. All parties agreed to binding
arbitration before Thomas Rutter and Rutter’s company, ADR
Options. James F. Wiley, III, represented Active; Thomas
Paradise, a partner at Fox Rothschild LLP (“Fox Rothschild”),
represented Vitale.
According to the Complaint, ADR Options is the largest
provider of alternative dispute resolution (“ADR”) services in
Pennsylvania, New Jersey, and Delaware. Rutter is the founding
shareholder and Chief Executive Officer of ADR Options.
Many of ADR Options’s arbitrators are former federal and state
judges.
Before beginning arbitration proceedings, the parties
entered into a binding ADR Options Arbitration Agreement,
which provided that:
Each party and participating attorney has
disclosed any past or present relationship with the
arbitrator, direct or indirect, whether financial,

1
These facts are taken from the allegations made in the
Complaint, which, on a motion to dismiss under Federal Rule
of Civil Procedure 12(b)(6), the court must accept as true and
view in the light most favorable to the plaintiff. Umland v.
PLANCO Fin. Servs., 542 F.3d 59, 64 (3d Cir. 2008).

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 professional, social or any other kind. The
arbitrator has also disclosed any past or present
relationship with any party or attorney. It is
understood that any doubt has been resolved in
favor of disclosure.
(J.A. at 114 [Proposed Am. Compl. 3, ¶ 14].) The result of the
arbitration proceedings was an award for defendants
Brownstein, Vitale, and B&V. Thereafter, Great Western
became the assignee of Active’s interest.
Great Western filed a petition in Pennsylvania state court
to vacate the arbitration award on the ground of improper failure
to disclose potential conflicts. In particular, Great Western
alleged that the managing partner at Fox Rothschild, Louis
Fryman, was concurrently employed at ADR Options as an
arbitrator and that Paradise maintained a professional
relationship with Rutter.2 The Philadelphia Court of Common
Pleas and the Superior Court of Pennsylvania ruled against
Great Western and confirmed the arbitration award. The
Supreme Court of Pennsylvania denied Great Western’s petition
for allowance of appeal.

2
In its federal Complaint, Great Western further alleged
that Vitale was an attorney for ADR Options and Rutter. (J.A.
at 124 [Proposed Am. Compl. 3, ¶ 82].) Great Western
acknowledged, however, that it did not discover this
information until after the state-court litigation. (Great Western
Br. 7.) As such, this allegation was not included in Great
Western’s petition to vacate the arbitration award.

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 While its appeal was pending before the Superior Court
of Pennsylvania, Great Western filed a separate civil action in
the Philadelphia Court of Common Pleas against Rutter, ADR
Options, Fox Rothschild, and Paradise, raising contract and tort
claims and alleging a failure to disclose the purportedly
improper relationships. Robert Tintner, a partner at Fox
Rothschild, represented all of the defendants. The Court of
Common Pleas dismissed the action as collaterally estopped, and
Great Western appealed. According to Great Western’s counsel,
Wiley, shortly thereafter Tintner called Wiley and informed him
that “[t]here [was] no way that a Philadelphia court [was] ever
going to find against Thomas Rutter given his relationship with
the Philadelphia court system.” (J.A. at 118 [Proposed Am.
Compl. 3, ¶ 43].) The Superior Court of Pennsylvania affirmed
the decision of the Court of Common Pleas dismissing the
action, and the Supreme Court of Pennsylvania denied Great
Western’s petition for allowance of appeal.
Thereafter, Great Western filed a federal action under 42
U.S.C. § 1983, claiming deprivations of procedural and
substantive due process. As defendants, Great Western named
Fox Rothschild, Paradise, Tintner, ADR Options, and Rutter
(collectively, “Defendants”). Great Western alleged that the
Pennsylvania state-court decisions were corrupted by the
improper influence of Defendants, arising both from the
Pennsylvania courts’ reliance on Rutter’s services and from
Pennsylvania judges’ prospect of future employment with ADR
Options. Specifically, Great Western claimed that “Defendants
had the power yet failed to take action to prevent violation of
Great Western’s constitutional rights to due process.” (J.A. at
127 [Proposed Am. Compl. 3, ¶ 105]). The District Court

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granted Defendants’ motion to dismiss for failure to state a
claim, holding that Great Western had not sufficiently alleged
that Defendants acted under color of state law. The District
Court reasoned that the corruption alleged by Great Western
“exists only to the extent that defendants conspired with the
courts to ensure the outcome of the underlying case” and
concluded that Great Western had failed to properly allege the
existence of a conspiracy between Defendants and the
Pennsylvania state court system. Great W. Mining & Mineral
Co. v. Fox Rothschild LLP, No. 08-cv-1093, 2009 WL 704335,
at *4 (D.N.J. Mar. 16, 2009).
Thereafter, Great Western filed a motion for
reconsideration and for leave to amend its complaint pursuant to
Federal Rules of Civil Procedure 59(e) and 15(a), attaching a
draft amended complaint (“Proposed Amended Complaint 1”).
While the reconsideration motion was pending, Great Western
filed a second motion for leave to amend, seeking to substitute
a new proposed draft amended complaint (“Proposed Amended
Complaint 2”), which was attached. Several weeks later and
without a ruling on the first two motions to amend, Great
Western filed a third motion for leave to amend, seeking to
substitute yet another proposed draft amended complaint
(“Proposed Amended Complaint 3”), which was attached. In
this motion, Great Western argued that it had newly discovered
evidence, specifically Rutter’s May 14, 2009 admission under
oath in another lawsuit that some of the judges who had ruled
against Great Western and for ADR Options had already
approached Rutter regarding the prospect of employment upon
leaving the bench.

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 On June 24, 2009, the District Court issued an
unpublished Letter Order denying the motion for reconsideration
on the merits and denying the three motions for leave to amend
as moot. In ruling on the motion for reconsideration, the District
Court considered Proposed Amended Complaint 2, but not
Proposed Amended Complaint 3. In a footnote, the District
Court explained that it declined to consider Proposed Amended
Complaint 3 because “[t]o allow plaintiff to repeatedly submit
drafts of its complaint while plaintiff’s original motions are still
pending would be prejudicial to defendants.” (J.A. at 3.) The
District Court denied the motion for reconsideration, holding
that the allegations in Proposed Amended Complaint 2 did not
support a conspiracy claim. On appeal, Great Western
challenges the District Court’s refusal to consider Proposed
Amended Complaint 3 and argues that the motion for
reconsideration was erroneously denied.
II.
Defendants contest our jurisdiction and that of the
District Court, contending that this action is barred by the
Rooker-Feldman doctrine. Although Defendants raised this
argument in their motion to dismiss, the District Court declined
to address it and, exercising jurisdiction pursuant to 28 U.S.C.
§§ 1331 and 1343, dismissed Great Western’s Complaint for
failure to state a claim under Federal Rule of Civil Procedure
12(b)(6). We exercise de novo review over questions of subject
matter jurisdiction.3 PennMont Secs. v. Frucher, 586 F.3d 242,

3
To the extent that we have subject matter jurisdiction,
we exercise it under 28 U.S.C. § 1291.

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245 (3d Cir. 2009). Moreover, all courts “have an independent
obligation to determine whether subject-matter jurisdiction
exists.” Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006).
Our standard of review of a district court’s dismissal
under Federal Rule of Civil Procedure 12(b)(6) is plenary.
PennMont Secs., 586 F.3d at 245. We review a district court
decision refusing leave to amend under Federal Rule of Civil
Procedure 15(a) for abuse of discretion. Bjorgung v. Whitetail
Resort, LP, 550 F.3d 263, 266 (3d Cir. 2008). Likewise, the
denial of a motion for reconsideration is reviewed for abuse of
discretion. McDowell v. Phila. Hous. Auth., 423 F.3d 233, 238
(3d Cir. 2005).
III.
A. Rooker-Feldman Doctrine
In certain circumstances, where a federal suit follows a
state suit, the Rooker-Feldman doctrine prohibits the district
court from exercising jurisdiction. The doctrine takes its name
from the only two cases in which the Supreme Court has
applied it to defeat federal subject-matter jurisdiction: Rooker
v. Fidelity Trust Co., 263 U.S. 413 (1923), and District of
Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983).
In a recent decision, the Supreme Court held that 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.”
Exxon Mobil, 544 U.S. at 284. Thus, any discussion of the

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scope of the doctrine must begin with an examination of its
namesake cases.
The Supreme Court characterized the lawsuit at issue in
Rooker as an attempt “to have a judgment of a circuit court in
Indiana, which was affirmed by the Supreme Court of the state,
declared null and void, and to obtain other relief dependent on
that outcome.” 263 U.S. at 414. Rooker and others, who had
lost in state court, sought relief in federal district court, arguing
that the state-court judgment was “in contravention of” the
United States Constitution. Id. at 415. The Supreme Court
affirmed the dismissal by the district court for lack of
jurisdiction. The Court reasoned that:
[u]nder the legislation of Congress, no court of
the United States other than this court could
entertain a proceeding to reverse or modify the
judgment for errors of that character. To do so
would be an exercise of appellate jurisdiction.
The jurisdiction possessed by the District Courts
is strictly original.
Id. at 416 (internal citations omitted). In other words, the relief
sought by the plaintiffs in federal court required federal
appellate review of the state-court judgment, a task entrusted by
statute solely to the Supreme Court.
Sixty years later, the Supreme Court revisited the issue
in Feldman. The plaintiffs in Feldman had petitioned the
District of Columbia Court of Appeals (the equivalent of a
state’s highest court, see 28 U.S.C. § 1257(b)) for waiver of a
court rule that required applicants to the District of Columbia
bar to have graduated from an accredited law school. Feldman,
460 U.S. at 463. The court denied their requests for a waiver,
and the plaintiffs filed a suit in federal district court,
challenging the D.C. court’s refusal to waive the rule and admit
them to the bar or at least permit them to take the bar

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examination. See id. at 468–70, 472–73. The Supreme Court,
affirming the Court of Appeals, reemphasized that “a United
States District Court has no authority to review final judgments
of a state court in judicial proceedings.” Id. at 482. Thus,
insofar as the plaintiffs sought review of the D.C. court’s
judgments, the district court lacked subject matter jurisdiction.
Id. at 482. To the extent, however, that the plaintiffs challenged
the constitutionality of the bar admission rules themselves, their
suit was not barred as it did not “require review of a final state
judgment in a particular case.” Id. at 486.
Twice in Feldman, the Supreme Court used the term
“inextricably intertwined” to describe the type of claims that
plaintiffs may not raise in federal district court. First, the Court
addressed the argument that if a plaintiff declined to assert
certain constitutional arguments in state court, a federal district
court could exercise jurisdiction over those claims as it would
not be reviewing an issue decided by the state court. Id. at 482
n.16. The Court rejected this line of reasoning, stating that:
[i]f the constitutional claims presented to a
United States District Court are inextricably
intertwined with the state court’s denial in a
judicial proceeding of a particular plaintiff’s
application for admission to the state bar, then the
District Court is in essence being called upon to
review the state court decision. This the District
Court may not do.
Id. In the second instance, the Court employed the term to
distinguish between the plaintiffs’ challenge to the
constitutionality of the bar rules themselves, which could
proceed in federal district court, and their challenge to the
denial of the waiver requests, which was prohibited:
[I]t is clear that [the plaintiffs’] allegations that
the District of Columbia Court of Appeals acted

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 arbitrarily and capriciously in denying their
petitions for waiver . . . required the [United
States] District Court to review a final judicial
decision of the highest court of a jurisdiction in a
particular case. These allegations are inextricably
intertwined with the District of Columbia Court
of Appeals’ decisions, in judicial proceedings, to
deny [the plaintiffs’] petitions. The [United
States] District Court, therefore, does not have
jurisdiction over these elements of the
[plaintiffs’] complaints.
Id. at 486–87. In other words, any of the plaintiffs’ claims
contesting the denial of their waivers, even if not raised before
the District of Columbia court, were “inextricably intertwined”
with judicial decisions by the District of Columbia court and,
thus, were barred.
Rooker and Feldman established the principle that
federal district courts lack jurisdiction over suits that are
essentially appeals from state-court judgments, but they offered
little instruction on how to apply that principle. Subsequent
Supreme Court case law provided little further assistance.
Before Exxon Mobil, “[t]he few decisions that have mentioned
Rooker and Feldman have done so only in passing or to explain
why those cases did not dictate dismissal.” Exxon Mobil, 544
U.S. at 287. In Exxon Mobil, the Court “granted certiorari to
resolve conflict among the Courts of Appeals over the scope of
the Rooker-Feldman doctrine.” Id. at 291 (internal citation
omitted). At the outset, the Court noted that the doctrine, as
variously interpreted in the lower courts, “has sometimes been
construed to extend far beyond the contours of the Rooker and
Feldman cases, overriding Congress’ conferral of federal-court
jurisdiction concurrent with jurisdiction exercised by state
courts, and superseding the ordinary application of preclusion
law.” Id. at 283. The Court found just such an error in the

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decision on review, in which we had held that “[o]nce
ExxonMobil’s claims had been litigated to a judgment in state
court . . . Rooker-Feldman ‘preclude[d] [the] federal district
court from proceeding.’” Id. at 290–91 (quoting Exxon Mobil
Corp. v. Saudi Basic Indus. Corp., 364 F.3d 102, 104 (3d Cir.
2004)) (alterations in original). We had “rejected
ExxonMobil’s argument that Rooker-Feldman could not apply
because ExxonMobil filed its federal complaint well before the
state-court judgment.” Id. at 290. Rather, we had concluded
that we lacked jurisdiction because ExxonMobil was
“endeavoring in the federal action to ‘invalidate’ the state-court
judgment, ‘the very situation,’ . . . ‘contemplated by Rooker-
Feldman’s “inextricably intertwined” bar.’” Id. at 291 (quoting
Exxon Mobil, 364 F.3d at 106).
Rejecting such an expansive application of the Rooker-
Feldman doctrine, the Court held that it 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.” Exxon Mobil, 544 U.S. at 284.
The Court emphasized that “Rooker and Feldman exhibit the
limited circumstances in which this Court’s appellate
jurisdiction over state-court judgments precludes a United
States district court from exercising subject-matter jurisdiction
in an action it would otherwise be empowered to adjudicate
under a congressional grant of authority.” Id. at 291 (emphasis
added) (internal citation omitted). The Court also clearly
distinguished the Rooker-Feldman doctrine from preclusion,
stating that “properly invoked concurrent jurisdiction [does not]
vanish[] if a state court reaches judgment on the same or related
question while the case remains sub judice in a federal court.”
Id. at 292. “When there is parallel state and federal litigation,
Rooker-Feldman is not triggered simply by the entry of
judgment in state court.” Id. But the “[d]isposition of the

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federal action, once the state-court adjudication is complete,
would be governed by preclusion law.” Id. at 293. Finally, the
Court explained that Rooker-Feldman is not implicated “simply
because a party attempts to litigate in federal court a matter
previously litigated in state court.” Id. If the matter was
previously litigated, as long as the “federal plaintiff ‘present[s]
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.’” Id. (quoting GASH Assocs. v. Rosemont, 995 F.2d
726, 728 (7th Cir. 1993)) (further citation omitted).
Breaking down the holding of Exxon Mobil, we conclude
that there are four requirements that must be met for the
Rooker-Feldman doctrine to apply: (1) the federal plaintiff lost
in state court; (2) the plaintiff “complain[s] of injuries caused
by [the] state-court judgments”; (3) those judgments were
rendered before the federal suit was filed; and (4) the plaintiff
is inviting the district court to review and reject the state
judgments. Exxon Mobil, 544 U.S. at 284. The second and
fourth requirements are the key to determining whether a
federal suit presents an independent, non-barred claim.
The second requirement—that a plaintiff must be
complaining of injuries caused by a state-court judgment—may
also be thought of as an inquiry into the source of the plaintiff’s
injury. See Turner v. Crawford Square Apartments III, L.P.,
449 F.3d 542, 547 (3d Cir. 2006) (“Here, the district court erred
by applying the Rooker-Feldman doctrine ‘beyond the contours
of the Rooker and Feldman cases,’ because Turner’s action in
the district court did not complain of injuries ‘caused by the
state court judgment.’” (quoting Exxon Mobil, 544 U.S. at
283–84)). But what does it mean for a plaintiff to be
complaining of an injury caused by the state-court judgment
itself? A look at a few representative cases and examples helps

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to illuminate this concept. In Hoblock v. Albany County Board
of Elections, 422 F.3d 77, 87 (2d Cir. 2005), the court posited
the following example of a case that would be barred by
Rooker-Feldman because the state-court judgment itself was the
source of the injury:
Suppose a state court, based purely on state law,
terminates a father’s parental rights and orders the
state to take custody of his son. If the father sues
in federal court for the return of his son on
grounds that the state judgment violates his
federal substantive due-process rights as a parent,
he is complaining of an injury caused by the state
judgment and seeking its reversal.
To the contrary, when the source of the injury is the defendant’s
actions (and not the state court judgments), the federal suit is
independent, even if it asks the federal court to deny a legal
conclusion reached by the state court:
Suppose a plaintiff sues his employer in state
court for violating both state anti-discrimination
law and Title VII and loses. If the plaintiff then
brings the same suit in federal court, he will be
seeking a decision from the federal court that
denies the state court’s conclusion that the
employer is not liable, but he will not be alleging
injury from the state judgment. Instead, he will
be alleging injury based on the employer’s
discrimination. The fact that the state court chose
not to remedy the injury does not transform the
subsequent federal suit on the same matter into an
appeal, forbidden by Rooker-Feldman, of the
state-court judgment.
Id. at 87–88 (emphasis added).

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 The critical task is thus to identify those federal suits that
profess to complain of injury by a third party, but actually
complain of injury “produced by a state-court judgment and not
simply ratified, acquiesced in, or left unpunished by it.” Id. at
88. In Hoblock, after first noting that the “voters’ claims in this
case seem at first to complain only of the [Board of Elections’]
refusal to tally their votes rather than of any injury caused by the
state court’s judgment,” the court clarified that “in refusing to
tally the votes, the Board [was] acting under compulsion of a
state-court order.” Id. Specifically, the Board, “had it been left
to its own devices, would have counted the 40 absentee
ballots,” but it was ordered not to do so by the state court. Id.
at 89. Thus, “the state-court judgment produced the Board’s
refusal to count the ballots, the very injury of which the voters
complain.” Id.
When, however, a federal plaintiff asserts injury caused
by the defendant’s actions and not by the state-court judgment,
Rooker-Feldman is not a bar to federal jurisdiction. See, e.g.,
Coles v. Granville, 448 F.3d 853, 859 (6th Cir. 2006); Davani
v. Va. Dep’t of Transp., 434 F.3d 712, 719 (4th Cir. 2006). A
useful guidepost is the timing of the injury, that is, whether the
injury complained of in federal court existed prior to the state-
court proceedings and thus could not have been “caused by”
those proceedings. See McKithen v. Brown, 481 F.3d 89, 98
(2d Cir. 2007); Turner, 449 F.3d at 547.
Although this test is seemingly straightforward,
application becomes more complicated when a federal plaintiff
complains of an injury that is in some fashion related to a state-
court proceeding. For example, in McCormick v. Braverman,
451 F.3d 382, 384 (6th Cir. 2006), the plaintiff filed suit in
federal court contending that she was the owner of certain real
property and that the defendants illegally interfered with her
ownership. More specifically, the plaintiff alleged that the
defendants engaged in fraud and misrepresentation in state-

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court divorce proceedings involving the real property at issue.
Id. at 388. Assessing the plaintiff’s allegations, the court held
that while some were barred by the Rooker-Feldman doctrine,
the remainder were “independent” claims over which the
federal courts had jurisdiction. The non-barred claims were as
follows: (1) the defendants committed fraud and
misrepresentation in the divorce proceedings; (2) the defendants
intentionally did not make the plaintiff a party to the litigation
concerning the order of receivership over the real property; and
(3) the defendants committed an abuse of process in the divorce
proceedings. Id. at 392. Focusing on the source of the alleged
injuries, the court held that “[n]one of these claims assert an
injury caused by the state court judgments . . . . Instead, Plaintiff
asserts independent claims that those state court judgments were
procured by certain Defendants through fraud,
misrepresentation, or other improper means . . . .” Id. Even
though the injuries of which the plaintiff complained helped to
cause the adverse state judgments, these claims were
“independent” because they stemmed from “some other source
of injury, such as a third party’s actions.” Id. at 393. On the
other hand, the court explained that the plaintiff’s claim that the
state court’s “order of receivership in and of itself is illegal and
causes Plaintiff harm” sought review of that order and thus was
not independent and was barred by Rooker-Feldman. Id. at
395.
In Fieger v. Ferry, 471 F.3d 637, 639 (6th Cir. 2006), an
attorney filed a suit in federal court challenging both the refusal
of certain Michigan Supreme Court justices to recuse
themselves from cases in which he was involved and the
constitutionality of Michigan’s recusal rule. In light of the
“acrimonious and well-publicized dialogue between Fieger . . .
and several justices of the Michigan Supreme Court,” Fieger
sought recusal of four of the justices, but the Justices denied the
recusal motions. Id. at 639–40 (internal quotation marks
omitted). In federal court, Fieger alleged that this failure to

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recuse violated his constitutional rights and sought a declaratory
judgment to this effect. The court held that this claim required
review and rejection of the “Justices’ past recusal decisions,”
which were rendered before the federal proceedings, and thus
was barred by Rooker-Feldman. Id. at 644. With respect to
Fieger’s challenge to Michigan’s recusal rule, however, the
court held that it was not barred, as “the source of Fieger’s
alleged injury is not the . . . state court judgments; it is the
purported unconstitutionality of Michigan’s recusal rule as
applied in future cases. Such a claim is independent of the past
state court judgments.” Id. at 646.
As is clear from the preceding discussion, the two key
requirements—that the injury must be caused by the state-court
judgment and that the plaintiff must invite review and rejection
of that judgment—are closely related. Yet, a federal plaintiff
who was injured by a state-court judgment is not invariably
seeking review and rejection of that judgment. For example, in
Adkins v. Rumsfeld, 464 F.3d 456, 460 (4th Cir. 2006), current
and retired service members whose retirement pay was divided
in state divorce proceedings pursuant to the Uniformed Services
Former Spouses’ Protection Act brought an action in federal
court challenging the statute’s constitutionality. The court held
that “even if these plaintiffs were ‘state-court losers
complaining of injuries caused by state-court judgments
rendered before the district court proceedings commenced,’ . . .
they were not ‘inviting district court review and rejection of
those judgments.’” Id. at 464 (quoting Exxon Mobil, 544 U.S.
at 284). A declaration that the federal statute was
unconstitutional as applied would prevent the continued
transmission of payments to the plaintiffs’ former spouses. Id.
“Such a declaration would not, however, amount to appellate
reversal or modification of a valid state court decree entered in
an individual plaintiff’s divorce case. At bottom, an
examination of the federal constitutional challenge presented
here against the [statute] does not require scrutinizing and

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invalidating any individual state court judgment.” Id. As such,
the plaintiffs’ federal suit did not require the prohibited exercise
of appellate jurisdiction by the district court. Id.
What this requirement targets is whether the plaintiff’s
claims will require appellate review of state-court decisions by
the district court. Prohibited appellate review “consists of a
review of the proceedings already conducted by the ‘lower’
tribunal to determine whether it reached its result in accordance
with law.” Bolden v. City of Topeka, Ks., 441 F.3d 1129, 1143
(10th Cir. 2006). It is important to distinguish such appellate
review from those cases in which “a party attempts to litigate in
federal court a matter previously litigated in state court,” Exxon
Mobil, 544 U.S. at 293, or in which “the federal plaintiff and
the adverse party are simultaneously litigating the same or a
similar dispute in state court,” Noel v. Hall, 341 F.3d 1148,
1163 (9th Cir. 2003) (cited with approval in Exxon Mobil). If
the matter was previously litigated, there is jurisdiction as long
as the “federal plaintiff present[s] some independent claim,”
even if that claim denies a legal conclusion reached by the state
court. Exxon Mobil, 544 U.S. at 293 (internal quotation marks
& citation omitted; alteration in original). When “the second
court tries a matter anew and reaches a conclusion contrary to
a judgment by the first court, without concerning itself with the
bona fides of the prior judgment,” the second, or federal, court
“is not conducting appellate review, regardless of whether
compliance with the second judgment would make it impossible
to comply with the first judgment.” Bolden, 441 F.3d at 1143.
In the case of simultaneous litigation, both suits may proceed
under the well-established rule allowing parallel state and
federal litigation. Noel, 341 F.3d at 1163. In neither of these
situations, unlike in a suit seeking review of a state-court
judgment, “does Rooker-Feldman bar subject matter
jurisdiction in federal district court, for in neither situation is the
federal plaintiff complaining of legal injury caused by a state
court judgment because of a legal error committed by the state

-19-
court.” Id. at 1164. Instead, “in both situations, the plaintiff is
complaining of legal injury caused by the adverse party.” Id.
In a case subsequent to Exxon Mobil, the Supreme Court
again emphasized that Rooker-Feldman is a “narrow doctrine”
that “applies only in limited circumstances.” Lance v. Dennis,
546 U.S. 459, 464–66 (2006) (internal quotation marks &
citations omitted). In light of this admonition, we have
recognized that “caution is now appropriate in relying on our
pre-Exxon formulation of the Rooker-Feldman doctrine,” which
focused on whether the state and federal suits were
“inextricably intertwined.” Gary v. Braddock Cemetery, 517
F.3d 195, 200 n.5 (3d Cir. 2008). In Exxon Mobil, the phrase
“inextricably intertwined” appears only three times, twice in the
Court’s description of Feldman and once in the Court’s
discussion of the lower court’s decision. 544 U.S. at 286 & n.1,
291. The Court deliberately did not rely on this formulation in
its jurisdictional analysis, instead employing the four-part
inquiry that we have outlined above. See McCormick, 451 F.3d
at 394 (“In Exxon, the Supreme Court implicitly repudiated the
circuits’ post-Feldman use of the phrase ‘inextricably
intertwined’ to extend Rooker-Feldman to situations where the
source of the injury was not the state court judgment.”).
Although the term “inextricably intertwined” was used twice by
the Supreme Court in Feldman, reliance on this term has caused
lower federal courts to apply Rooker-Feldman too broadly. The
phrase “inextricably intertwined” does not create an additional
legal test or expand the scope of Rooker-Feldman beyond
challenges to state-court judgments. When a federal plaintiff
brings a claim, whether or not raised in state court, that asserts
injury caused by a state-court judgment and seeks review and
reversal of that judgment, the federal claim is “inextricably
intertwined” with the state judgment. See McCormick, 451
F.3d at 394–95; Davani, 434 F.3d at 719; Hoblock, 422 F.3d at
86; see also Bolden, 441 F.3d at 1141 (“[T]he purpose of the
term is to highlight that a challenge to a judgment is barred even

-20-
if the claim forming the basis of the challenge was not raised in
the state proceedings.”). The phrase “inextricably intertwined,”
however, “has no independent content. It is simply a
descriptive label attached to claims that meet the requirements
outlined in Exxon Mobil.”4 Hoblock, 422 F.3d at 87.

4
Defendants cite to cases in which, post-Exxon Mobil,
we relied on our pre-Exxon Mobil formulation of the Rooker-
Feldman doctrine, specifically the “inextricably intertwined”
test. Although we cited our pre-Exxon Mobil definition of
“inextricably intertwined,” at bottom, the holdings in these
cases rested on the same concerns at issue in Exxon
Mobil—whether the plaintiff’s claim complains of an injury
caused by a state-court judgment rendered before the federal
proceeding and seeks review and rejection of that judgment.
Specifically, in Taliaferro v. Darby Township Zoning Board,
458 F.3d 181, 193 (3d Cir. 2006), we held that there was federal
subject matter jurisdiction as the federal action “was
commenced . . . well before any state court judgment was
reached, so the district court could not have been invited to
review and reject such a judgment.”
In two other cases, we held that the Rooker-Feldman
doctrine barred the suit because a favorable decision in federal
court would require negating or reversing the state-court
decision. In re Madera, 586 F.3d 228, 232 (3d Cir. 2009); In
re Knapper, 407 F.3d 573, 581 (3d Cir. 2005). As such, we
described the state and federal suits as “inextricably
intertwined,” using this phrase as a shorthand for the concept
that the plaintiff could not “prevail on her federal claim without
obtaining an order that would negate the state court[s’]
judgment[s].” In re Knapper, 407 F.3d at 581 (internal
quotation marks & citation omitted; alterations in original).
Accordingly, all three of these cases are consistent with
Exxon Mobil and with the approach we adopt today.
Nevertheless, for the sake of clarity, we should exercise

-21-
 As a final step, should the Rooker-Feldman doctrine not
apply such that the district court has jurisdiction, “[d]isposition
of the federal action, once the state-court adjudication is
complete, would be governed by preclusion law.” Exxon Mobil,
544 U.S. at 293. In other words, the federal court must “‘give
the same preclusive effect to a state-court judgment as another
court of that State would give.’” Id. (quoting Parsons Steel,
Inc. v. First Ala. Bank, 474 U.S. 518, 523 (1986)) (further
citation omitted). As Exxon Mobil makes clear, the Rooker-
Feldman inquiry is distinct from the question of whether claim
preclusion (res judicata) or issue preclusion (collateral estoppel)
defeats the federal suit. Importantly, preclusion is not
jurisdictional. Id. “In parallel litigation, a federal court may be
bound to recognize the claim- and issue-preclusive effects of a
state-court judgment, but federal jurisdiction over an action
does not terminate automatically on the entry of judgment in the
state court.” Id.
Turning to the instant case, the critical question is
whether Great Western is a “state-court loser[] 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. Clearly,
Great Western lost in state court, and the state-court judgments
were rendered before Great Western commenced its federal suit.
The remaining requirements, however, present closer questions.
Great Western alleges an extensive conspiracy among Rutter,
numerous attorneys, and various state-court judges to engineer
Great Western’s defeat in state court. It claims that, pursuant to
this conspiracy, “the court decisions were predetermined prior

“caution . . . in relying on our pre-Exxon formulation of the
Rooker-Feldman doctrine,” particularly those cases which may
be read to suggest that the phrase “inextricably intertwined”
created an additional legal test. Gary, 517 F.3d at 200 n.5.

-22-
to the beginning of the hearing.” (J.A. at 126 [Proposed Am.
Compl. 3, ¶ 93].) As a result, Great Western was purportedly
forced to litigate in a rigged system and could not “receive a fair
hearing in Pennsylvania against ADR Options and Rutter,” in
violation of its constitutional rights. (Id. [Proposed Am. Compl.
3, ¶ 94].) Does such a claim assert injury caused by state-court
judgments and seek review and rejection of those judgments?
We think not.
Grappling with similar claims, in two cases the Seventh
Circuit has held that Rooker-Feldman did not operate to bar the
federal proceedings. In Nesses v. Shepard, 68 F.3d 1003, 1004
(7th Cir. 1995), the federal plaintiff alleged that his losses in
state court were the product of a conspiracy among the judges
and the lawyers. The court acknowledged that Nesses “was in
a sense attacking the ruling by the state court that he had been
inexcusably dilatory in complying with a discovery order; he
was in the same sense attacking the decisions themselves that
dismissed his suit.” Id. Another aspect of Nesses’s suit could
also be viewed as an attack on the state-court judgments:
Nesses cannot show injury from the alleged
conspiracy unless the decision dismissing his suit
for breach of contract was erroneous.5 For

5
Note that even if the state-court decision was justified,
a plaintiff could nevertheless be entitled to some relief based on
the violation of his or her due process rights, which is an
independent injury. See Carey v. Piphus, 435 U.S. 247, 266
(1978). The Supreme Court has held that plaintiffs who are
denied due process can recover mental or emotional distress
damages or nominal damages. Id. at 262–64, 266 (“Because the
right to procedural due process is ‘absolute’ in the sense that it
does not depend upon the merits of a claimant’s substantive
assertions, and because of the importance to organized society
that procedural due process be observed, we believe that the

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 suppose that although there was this nefarious
conspiracy his suit had no merit and so would
have failed even if there had been no conspiracy.
Then the conspiracy did him no harm and without
harm there is no tort . . . . To show harm and thus
keep the present suit alive, Nesses would have to
show that the decision by the Indiana court in his
suit for breach of contract was erroneous, and
that, it may appear, Rooker-Feldman bars him
from doing.
Id. at 1005 (internal citations omitted). But the Rooker-
Feldman doctrine, the court concluded, “is not that broad.” Id.
Nesses was not merely claiming that the decision of the state
court was incorrect or that the decision itself violated his
constitutional rights; such claims would be barred. Instead,
because Nesses alleged that “people involved in the decision
violated some independent right of his, such as the right (if it is
a right) to be judged by a tribunal that is uncontaminated by
politics, then he [could], without being blocked by the
Rooker-Feldman doctrine, sue to vindicate that right.” Id.
(emphasis added). Moreover, Nesses could, “as part of his
claim for damages,” show “that the violation caused the
decision to be adverse to him and thus did him harm.” Id. If
Rooker-Feldman barred jurisdiction, “there would be no federal
remedy for a violation of federal rights whenever the violator so
far succeeded in corrupting the state judicial process as to
obtain a favorable judgment.” Id.
In Brokaw v. Weaver, 305 F.3d 660, 662 (7th Cir. 2002),
the plaintiff alleged that her relatives and officials conspired to
cause the state to forcibly remove her from her parents’ home.

denial of procedural due process should be actionable for
nominal damages without proof of actual injury.” (internal
citations omitted)).

-24-
She contended that “the defendants conspired—prior to any
judicial involvement—to cause false child neglect proceedings
to be filed, resulting in her removal from her home in violation
of her . . . substantive and procedural due process rights” and
explained “that she [wa]s seeking damages for the conspiracy,
not for the state court’s decision in the child neglect
proceeding.” Id. at 665. The court held that Nesses applied as
the plaintiff was “alleging that the people involved in the
decision to forcibly remove her from her home and her
parents . . . violated her constitutional rights, independently of
the state court decision.” Id. Even if the plaintiff would not
have suffered any damages from the alleged conspiracy absent
the state-court order, her claim was not barred by Rooker-
Feldman “because her claim for damages is based on an alleged
independent violation of her constitutional rights. It was this
separate constitutional violation which caused the adverse state
court decision.” Id. at 667; see also Ernst v. Child & Youth
Servs., 108 F.3d 486, 491–92 (3d Cir. 1997) (holding that a
claim alleging that defendants violated plaintiff’s due process
rights by making biased recommendations to the state court,
resulting in an improper ruling, was not barred by Rooker-
Feldman as it was separate from the state-court judgment).6

6
In holding that the Rooker-Feldman doctrine did not
apply, both Brokaw and Ernst also relied on an alternative
ground—that the plaintiff did not have an opportunity to
present the current constitutional claims in state court. Brokaw,
305 F.3d at 668; Ernst, 108 F.3d at 492. This, however, was an
additional reason for concluding that Rooker-Feldman is
inapplicable when a plaintiff presents a claim in federal court
that individuals involved in a state-court decision violated an
independent constitutional right. We need not decide today
whether this exception to the Rooker-Feldman doctrine remains
good law following Exxon Mobil.

-25-
 We find the reasoning of the Seventh Circuit persuasive
and conclude that it applies here. As in Nesses, Great Western,
by alleging a conspiracy between Defendants and the
Pennsylvania judiciary to rule in favor of Rutter and ADR
Options, is attacking the state-court judgments. But, like
Nesses, Great Western is not merely contending that the state-
court decisions were incorrect or that they were themselves in
violation of the Constitution. Instead, Great Western claims
that “people involved in the decision violated some independent
right,” that is, the right to an impartial forum. Nesses, 68 F.3d
at 1005. The alleged agreement to reach a predetermined
outcome in a case would itself violate Great Western’s
constitutional rights, independently of the subsequent state-
court decisions. See Marshall v. Jerrico, Inc., 446 U.S. 238,
242 (1980) (“The Due Process Clause entitles a person to an
impartial and disinterested tribunal in both civil and criminal
cases.”). “[B]ecause [Great Western’s] claim for damages is
based on an alleged independent violation of [its] constitutional
rights,” the source of Great Western’s purported injury was the
actions of Defendants and members of the Pennsylvania
judiciary, not the state-court decisions themselves. Brokaw, 305
F.3d at 667. “It was this separate constitutional violation which
caused the adverse state court decision” and the injury to Great
Western. Id.; accord McCormick, 451 F.3d at 392. Thus, as
the state-court judgments were not themselves the cause of
Great Western’s alleged injuries, the Rooker-Feldman doctrine
did not deprive the District Court of jurisdiction over Great
Western’s claims.
The fact that Defendants’ actions, rather than the state-
court judgments, were the source of Great Western’s injuries is
alone sufficient to make Rooker-Feldman inapplicable here.
Nevertheless, it is worthwhile to discuss the other key
requirement—whether Great Western seeks review and
rejection of the state-court judgments.

-26-
 Regardless of the merits of the state-court decisions, if
Great Western could prove the existence of a conspiracy to
reach a predetermined outcome in state court, it could recover
nominal damages for this due process violation. Carey, 435
U.S. at 262–64, 266. Great Western’s entitlement to such
damages could be assessed without any analysis of the state-
court judgments. To recover for more than the alleged due
process violation, however, Great Western would have to show
that the adverse state-court decisions were entered erroneously.
See Nesses, 68 F.3d at 1005. This is not the type of appellate
review of state-court decisions contemplated by the Rooker-
Feldman doctrine. In both Rooker and Feldman, the plaintiffs
sought to have the state-court decisions undone or declared null
and void by the federal courts. See Rooker, 263 U.S. at 414;
Feldman, 460 U.S. at 468–69, 472–73. The relief requested by
the plaintiffs in the federal courts would have required
effectively overruling the state-court judgments. This is not the
case here. Great Western may, “as part of [its] claim for
damages,” show “that the [constitutional] violation caused the
decision[s] to be adverse to [it] and thus did [it] harm.” Nesses,
68 F.3d at 1005. A finding by the District Court that state-court
decisions were erroneous and thus injured Great Western would
not result in overruling the judgments of the Pennsylvania
courts. Pursuant to Exxon Mobil, a federal plaintiff may not
seek “review and rejection” of state-court judgments. 544 U.S.
at 284. Here, while Great Western’s claim for damages may
require review of state-court judgments and even a conclusion
that they were erroneous, those judgments would not have to be
rejected or overruled for Great Western to prevail.
Accordingly, the review and rejection requirement of the
Rooker-Feldman doctrine is not met, and the District Court
properly exercised jurisdiction over Great Western’s suit.
Ordinarily, having concluded our jurisdictional inquiry,
the next step would be to apply state law to determine the
preclusive effect of the prior state-court judgments. Defendants

-27-
did not raise the issues of res judicata or collateral estoppel in
their motion to dismiss or before this Court. Estoppel, as an
affirmative defense, may be raised in an answer and is not
waived through failure to include it in a motion to dismiss. See
Fed. R. Civ. P. 8(c), 12(h). Preclusion, however, is not
jurisdictional. Exxon Mobil, 544 U.S. at 293. As the parties
have not briefed this issue and as we can affirm the District
Court on the merits, we need not reach the question of the
preclusive effect of the prior state-court judgments. Instead, we
turn to the merits of Great Western’s arguments that the District
Court erroneously denied its final motion for leave to amend the
complaint and its motion for reconsideration.
B. Motion for Leave to Amend
As we have discussed, after the District Court granted
Defendants’ motion to dismiss, Great Western filed a motion for
reconsideration and a motion for leave to amend, attaching a
draft amended complaint, Proposed Amended Complaint 1.
While the motion for reconsideration was pending, Great
Western filed two additional motions for leave to amend, each
time attaching a new draft amended complaint—Proposed
Amended Complaint 2, then Proposed Amended Complaint 3.
In ruling on the motion for reconsideration, the District Court
considered Proposed Amended Complaint 2, but not Proposed
Amended Complaint 3. In a footnote, the District Court
explained that “[t]o allow plaintiff to repeatedly submit drafts of
its complaint while plaintiff’s original motions are still pending
would be prejudicial to defendants.” (J.A. at 3.) Great Western
challenges this ruling by the District Court.
Amendments to pleadings are governed by Federal Rule
of Civil Procedure 15(a), which provides that “a party may
amend its pleading only with the opposing party’s written
consent or the court’s leave. The court should freely give leave
when justice so requires.” Interpreting Rule 15(a), the Supreme
Court has held:

-28-
 In the absence of any apparent or declared
reason—such as undue delay, bad faith or dilatory
motive on the part of the movant, repeated failure
to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by
virtue of allowance of the amendment, futility of
amendment, etc.—the leave sought should, as the
rules require, be “freely given.” Of course, the
grant or denial of an opportunity to amend is
within the discretion of the District Court, but
outright refusal to grant the leave without any
justifying reason appearing for the denial is not an
exercise of discretion; it is merely abuse of that
discretion and inconsistent with the spirit of the
Federal Rules.
Foman v. Davis, 371 U.S. 178, 182 (1962). As we have
explained, “[d]istrict courts are the experts in the field of applied
trial procedure, so appellate courts should not be quick to
reverse . . . . That said, we also have acknowledged that the
liberal pleading philosophy of the federal rules does limit a
district court’s discretion to deny leave to amend.” Bjorgung,
550 F.3d at 266 (citing Adams v. Gould, 739 F.2d 858, 864 (3d
Cir. 1984)). Further guiding district courts’ exercise of
discretion, we have held that “if a complaint is subject to a Rule
12(b)(6) dismissal, a district court must permit a curative
amendment unless such an amendment would be inequitable or
futile.” Phillips v. County of Allegheny, 515 F.3d 224, 245 (3d
Cir. 2008) (citing Alston v. Parker, 363 F.3d 229, 235 (3d Cir.
2004)).
The District Court concluded that allowing Great
Western to submit a third proposed amended complaint would
be prejudicial to defendants and denied leave to amend on this
ground. We agree with Great Western that the District Court’s

-29-
conclusion regarding prejudice was erroneous.7 Nevertheless,
we will affirm the District Court on the ground that granting
leave to amend would have been futile. See United States v.
Sanchez, 562 F.3d 275, 279 (3d Cir. 2009) (holding that an
appellate court may affirm the result reached by the district court
on alternative grounds, provided that the record supports the
judgment).

7
Although Defendants opposed Great Western’s motions
for leave to amend before the District Court, they did not argue
that granting leave to amend would prejudice them. Similarly,
they do not make that argument in their brief on appeal. They
contend before us, as they asserted in the District Court, that
granting leave to amend would be futile as all versions of Great
Western’s complaint failed to state a claim on which relief could
be granted. In denying leave to amend on the ground of
prejudice, the District Court did not articulate specifically how
permitting amendment would prejudice Defendants. See
Cureton v. Nat’l Collegiate Athletic Ass’n, 252 F.3d 267, 276
(3d Cir. 2001) (“[T]he obligation of the district court . . . is to
articulate the prejudice caused by the [amendment] and to
balance those concerns against the reasons for [the
amendment].”).
Nothing in the facts of this case demonstrates any
particular prejudice that would have resulted from allowing
Great Western to substitute Proposed Amended Complaint 3, as
long as the District Court had given Defendants an opportunity
to respond. We recognize that the District Court’s conclusion
that permitting Great Western to repeatedly amend its complaint
would prejudice Defendants is entitled to substantial deference.
Nevertheless, in light of the record and the absence of a
reasoned explanation of how Defendants would be prejudiced
by the amendment, we conclude that the District Court erred
when it denied Great Western’s third motion for leave to amend
on grounds of prejudice.

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 Under Rule 15(a), futility of amendment is a sufficient
basis to deny leave to amend. Futility “means that the
complaint, as amended, would fail to state a claim upon which
relief could be granted.” In re Merck & Co. Sec., Derivative, &
ERISA Litig., 493 F.3d 393, 400 (3d Cir. 2007) (internal
quotation marks & citation omitted). The standard for assessing
futility is the “same standard of legal sufficiency as applies
under [Federal] Rule [of Civil Procedure] 12(b)(6).” Shane v.
Fauver, 213 F.3d 113, 115 (3d Cir. 2000). In other words,
“[t]he District Court determines futility by taking all pleaded
allegations as true and viewing them in a light most favorable to
the plaintiff.” Winer Family Trust v. Queen, 503 F.3d 319,
330–31 (3d Cir. 2007) (citing In re Alpharma, Inc. Sec. Litig.,
372 F.3d 137, 153–54 (3d Cir. 2004)). Typically, “[w]e review
for abuse of discretion, and there is none where pleading
deficiencies would not have been remedied by proposed
amendments.” Kanter v. Barella, 489 F.3d 170, 181 (3d Cir.
2007) (citing In re Adams Golf, Inc. Sec. Litig., 381 F.3d 267,
280 (3d Cir. 2004)). In the instant case, however, the District
Court did not consider whether permitting Great Western to
amend and substitute Proposed Amended Complaint 3 would
have been futile, thus our review is de novo, applying the same
standard that would have been applied by the District Court.8

8
In the Order denying Great Western’s motion for
reconsideration, the District Court evaluated whether allowing
Great Western to substitute Proposed Amended Complaint 2
would be futile. The District Court did not assess futility with
respect to Proposed Amended Complaint 3, instead declining to
consider that version on the ground that it would be prejudicial
to Defendants. As we have noted, the refusal to consider
Proposed Amended Complaint 3 on the basis of prejudice to
Defendants was an abuse of discretion. We see no reason for
remand, however, because for the reasons stated in our opinion,
it is clear that substituting Proposed Amended Complaint 3

-31-
 To determine whether the substitution of Proposed
Amended Complaint 3 would have been futile, we consider the
merits of Great Western’s motion for reconsideration and the
additional allegation contained in that version of the complaint.
Specifically, we question whether the addition of the new
allegation is sufficient to state a claim under 42 U.S.C. § 1983
such that the District Court should have granted Great Western’s
motion for reconsideration.
To prevail on a § 1983 claim, a plaintiff must allege that
the defendant acted under color of state law, in other words, that
there was state action. Lugar v. Edmondson Oil Co., 457 U.S.
922, 929 (1982). As relevant to this case, the Supreme Court
has held that “[p]rivate parties who corruptly conspire with a
judge in connection with [an official judicial act] are . . . acting
under color of state law within the meaning of § 1983.” Dennis
v. Sparks, 449 U.S. 24, 29 (1980); see also Lugar, 457 U.S. at
941 (“[A] private party’s joint participation with state officials
in the seizure of disputed property is sufficient to characterize
that party as a ‘state actor’ for purposes of the Fourteenth
Amendment.”). Thus, in order to state a claim under § 1983,
Proposed Amended Complaint 3 must have adequately pled the
existence of a conspiracy between Defendants, who are private
parties, and the judges of the Pennsylvania court system.
In two recent landmark cases, the Supreme Court
reexamined Federal Rule of Civil Procedure 8 and the pleading
standards that a plaintiff must meet to state a claim that will
survive a motion to dismiss under Rule 12(b)(6). The first of
these two cases, Bell Atlantic Corp. v. Twombly, focused on “the
proper standard for pleading [a Sherman Act] antitrust
conspiracy through allegations of parallel conduct.” 550 U.S.
544, 553 (2007). The Court reaffirmed that “Federal Rule of
Civil Procedure 8(a)(2) requires only a short and plain statement

would be futile.

-32-
of the claim showing that the pleader is entitled to relief” and
that this standard does not require “detailed factual allegations.”
Id. at 555 (internal quotation marks & citation omitted).
Moreover, the Court reemphasized that at the motion to dismiss
stage, the factual matter in the complaint must be taken as true
and “a well-pleaded complaint may proceed even if it strikes a
savvy judge that actual proof of those facts is improbable.” Id.
at 556.
In Twombly, however, the Supreme Court announced
“two new concepts.” Phillips, 515 F.3d at 231. First, the
Twombly Court explained that Rule 8(a)(2) “requires a
‘showing,’ rather than a blanket assertion, of entitlement to
relief.” 550 U.S. at 555 n.3. In other words, “a plaintiff’s
obligation to provide the ‘grounds’ of his ‘entitle[ment] to
relief’ requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not
do.” Id. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286
(1986)) (alteration in original). The complaint’s “[f]actual
allegations must be enough to raise a right to relief above the
speculative level.” Id. Second, the Twombly Court rejected the
oft-cited Conley standard “‘that a complaint should not be
dismissed for failure to state a claim unless it appears beyond
doubt that the plaintiff can prove no set of facts in support of his
claim which would entitle him to relief.’” Id. at 561 (quoting
Conley, 355 U.S. at 45–46). The Court retired this test as “an
incomplete, negative gloss on an accepted pleading standard:
once a claim has been stated adequately, it may be supported by
showing any set of facts consistent with the allegations in the
complaint.” Id. at 563.
Applying these general standards to the task of pleading
an antitrust conspiracy, the Court explained that:
[A]n allegation of parallel conduct and a bare
assertion of conspiracy will not suffice. Without
more, parallel conduct does not suggest

-33-
 conspiracy, and a conclusory allegation of
agreement at some unidentified point does not
supply facts adequate to show illegality. Hence,
when allegations of parallel conduct are set out in
order to make a § 1 claim, they must be placed in
a context that raises a suggestion of a preceding
agreement, not merely parallel conduct that could
just as well be independent action.
Id. at 556–57. Analyzing the complaint at issue, the Court held
that it was insufficient as it failed to “set forth a single fact in a
context that suggests an agreement.” Id. at 561–62. Although
the complaint alleged parallel conduct, it gave the Court “no
reason to infer that the companies had agreed among themselves
to do what was only natural anyway.” Id. at 566. Finding an
“obvious alternative explanation” for the parallel conduct, the
Court concluded that the “plaintiffs here have not nudged their
claims across the line from conceivable to plausible, [and] their
complaint must be dismissed.” Id. at 567, 570.
The second case, Ashcroft v. Iqbal, concerned allegations
of discrimination on the basis of race, religion, or national origin
in the wake of the September 11, 2001 terrorist attacks. — U.S.
—, 129 S. Ct. 1937, 1942 (2009). The Supreme Court clarified
that “[o]ur decision in Twombly expounded the pleading
standard for ‘all civil actions.’” Id. at 1953 (quoting Fed. R.
Civ. P. 1). Analyzing Twombly, the Iqbal Court explained that
“[t]wo working principles underlie our decision . . . . First, the
tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions. . . .
Second, only a complaint that states a plausible claim for relief
survives a motion to dismiss.” Id. at 1949–50 (internal citations
omitted). In light of these principles, the Court laid out a two-
pronged approach:
[A] court considering a motion to dismiss can
choose to begin by identifying pleadings that,

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 because they are no more than conclusions, are
not entitled to the assumption of truth. . . . When
there are well-pleaded factual allegations, a court
should assume their veracity and then determine
whether they plausibly give rise to an entitlement
to relief.
Id. at 1950. With respect to conclusory allegations, the Court
clarified that “we do not reject these bald allegations on the
ground that they are unrealistic or nonsensical. . . . It is the
conclusory nature of [such] allegations, rather than their
extravagantly fanciful nature, that disentitles them to the
presumption of truth.” Id. at 1951.
In light of Twombly, “it is no longer sufficient to allege
mere elements of a cause of action; instead ‘a complaint must
allege facts suggestive of [the proscribed] conduct.’” Phillips,
515 F.3d at 233(quoting Twombly, 550 U.S. at 563 n.8)
(alteration in original). Noting that “[c]ontext matters in notice
pleading,” we held that “some complaints will require at least
some factual allegations to make out a ‘showing that the pleader
is entitled to relief, in order to give the defendant fair notice of
what the . . . claim is and the grounds upon which it rests.’” Id.
at 232 (quoting Twombly, 550 U.S. at 555). We summed up the
Twombly pleading standard as follows: “‘[S]tating . . . a claim
requires a complaint with enough factual matter (taken as true)
to suggest’ the required element. This ‘does not impose a
probability requirement at the pleading stage,’ but instead
‘simply calls for enough facts to raise a reasonable expectation
that discovery will reveal evidence of’ the necessary element.”
Id. at 234 (quoting Twombly, 550 U.S. at 556). In other words,
“there must be some showing sufficient to justify moving the
case beyond the pleadings to the next stage of litigation.” Id. at
234–35.
We have held that to properly plead an unconstitutional
conspiracy, a plaintiff must assert facts from which a

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conspiratorial agreement can be inferred. D.R. v. Middle Bucks
Area Vocational Tech. Sch., 972 F.2d 1364, 1377 (3d Cir.
1992); see also Startzell v. City of Philadelphia, 533 F.3d 183,
205 (3d Cir. 2008) (stating that a conspiracy requires a “meeting
of the minds”) (further citation omitted). This holding remains
good law following Twombly and Iqbal, which, in the
conspiracy context, require “enough factual matter (taken as
true) to suggest that an agreement was made,” in other words,
“plausible grounds to infer an agreement.” Twombly, 550 U.S.
at 556. Great Western’s Proposed Amended Complaint 3 fails
to meet this standard.
Under Iqbal, to assess the sufficiency of Proposed
Amended Complaint 3, we “begin by identifying pleadings that,
because they are no more than conclusions, are not entitled to
the assumption of truth.” 129 S. Ct. at 1950. Accordingly, we
do not consider any conclusory allegations that there was “a
corrupt conspiracy,” “an agreement,” or “an understanding in
place between the Defendants and the Philadelphia judicial
system.” (J.A. at 112, 119 [Proposed Am. Compl. 3, ¶¶ 2, 51].)
As the Iqbal Court clarified, “we do not reject these bald
allegations on the ground that they are unrealistic or
nonsensical. . . . It is the conclusory nature of [such] allegations”
that makes them unacceptable. 129 S. Ct. at 1951.
The Supreme Court has held that “merely resorting to the
courts and being on the winning side of a lawsuit does not make
[the winning] party a co-conspirator or a joint actor with the
judge.” Dennis, 449 U.S. at 28. Instead, Great Western must
plead an agreement between the state court judges and
Defendants to rule in favor of ADR Options and Rutter. To
properly plead such an agreement, “a bare assertion of
conspiracy will not suffice.” Twombly, 550 U.S. at 556.
Applying Twombly, Great Western’s statement that
“Defendants engaged in a concerted action of a kind not likely
to occur in the absence of agreement” is inadequate to properly

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plead an agreement. (J.A. at 120 [Proposed Am. Compl. 3,
¶ 55].) The factual allegations of agreement on which Great
Western rests its claim are as follows: (1) according to Wiley,
on or about March 1, 2006, Tintner stated that there was “no
way that a Philadelphia court is ever going to find against
Thomas Rutter given his relationship with the Philadelphia court
system” (id. at 118 [Proposed Am. Compl. 3, ¶ 43]); (2) ADR
Options is the largest provider of ADR services in Pennsylvania,
has a large roster of former judges employed as arbitrators, and
pays its arbitrators handsomely; and (3) in May 2009, Rutter
testified at a deposition that some of the judges who had ruled
for ADR Options and against Great Western had already
approached him about employment after they leave the bench.
Great Western alleges that these factual allegations, when
viewed in concert with the decisions rendered by the
Pennsylvania state courts, evidence “unnatural parallelism” and
a quid pro quo relationship. (Great Western Br. 18, 20.)
At most, Great Western has alleged that Pennsylvania
state-court judges hoped to secure employment with ADR
Options after leaving the bench and thus had an incentive to rule
in the company’s favor. Fatal to its claim, however, Great
Western failed to make any factual contentions concerning
conduct by Rutter or any of the other Defendants. Specifically,
even Proposed Amended Complaint 3 is devoid of allegations
that Rutter or any of the Defendants did or said something to the
judges to create an understanding that favorable rulings could
result in future employment. Instead, the allegations in the
complaint, even when viewed in the light most favorable to
Great Western, describe unilateral action on the part of certain
judges. For a judge to approach a party for whom he or she has
just ruled to discuss the possibility of working for that party
certainly creates a strong appearance of impropriety. Yet this
allegation, without a complementary allegation of conduct by
the non-judicial actor, does not plausibly suggest the existence

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of a conspiracy between the party and the judge to exchange
favorable rulings for future employment.
A comparison between the allegations in this case and
those in Dennis, which the Supreme Court held were sufficient
to survive a motion to dismiss, further emphasizes the
deficiencies in Great Western’s complaint. In Dennis, a state
court enjoined the plaintiffs from producing minerals from
certain oil leases. 449 U.S. at 25. The state appellate court
dissolved the injunction as illegal, and the plaintiffs brought a
§ 1983 claim, contending that “the injunction had been corruptly
issued as the result of a conspiracy between the judge and the
other defendants, thus causing a deprivation of property . . .
without due process of law.” Id. at 26. Specifically, the
plaintiffs claimed that the private party defendants had bribed
the state-court judge to cause him to issue an injunction in their
favor. Id. at 28. This alleged act of bribery was conduct by the
non-judicial defendants that resulted in a corrupt conspiracy to
rule against the plaintiffs. In contrast, Great Western’s
complaint contains no similar allegations of specific conduct by
the non-judicial actors that caused the judges to enter into an
unlawful conspiracy.
Furthermore, Great Western has not pleaded any facts
that plausibly suggest a meeting of the minds between Rutter
and members of the Pennsylvania judiciary. See Twombly, 550
U.S. at 556 (holding that a plaintiff claiming conspiracy must
plead “enough fact to raise a reasonable expectation that
discovery will reveal evidence of illegal agreement”). The
complaint sets forth merely a “conclusory allegation of
agreement at some unidentified point[, which] does not supply
facts adequate to show illegality.” Id. at 557. Specifically,
Great Western has failed to allege except in general terms the
approximate time when the agreement was made, the specific
parties to the agreement (i.e., which judges), the period of the
conspiracy, or the object of the conspiracy. See, e.g., Shearin v.

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E.F. Hutton Group, Inc., 885 F.2d 1162, 1166 (3d Cir. 1989)
(“To plead conspiracy adequately, a plaintiff must set forth
allegations that address the period of the conspiracy, the object
of the conspiracy, and the certain actions of the alleged
conspirators taken to achieve that purpose.”), abrogated on
other grounds by Beck v. Prupis, 529 U.S. 494 (2000).
Great Western’s Proposed Amended Complaint 3 lacks
sufficient factual allegations to create “plausible grounds to
infer an agreement,” as is required by Twombly. 550 U.S. at
556. Any effort to amend by substituting Proposed Amended
Complaint 3 therefore was futile, and we in turn affirm the
District Court’s denial of leave to amend on that ground.9
IV.
For the foregoing reasons, we hold that the District Court
properly exercised jurisdiction. We will affirm the District
Court’s denial of Great Western’s motion for leave to amend
and its motion for reconsideration.

9
Great Western also appeals the denial of its motion for
reconsideration, arguing that reconsideration was warranted
based on previously unavailable evidence—Rutter’s statement
at the May 14, 2009 deposition—and the need to correct clear
errors of law. Having thoroughly considered all of Great
Western’s arguments in favor of reconsideration, we conclude
that they are without merit.

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