Kennan G. Dandar v. Church of Scientology Flag Service Organization, Inc.

Case: 14-13574 Date Filed: 08/10/2015 Page: 1 of 8

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 14-13574
Non-Argument Calendar
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D.C. Docket No. 8:12-cv-02477-VMC-EAJ

KENNAN G. DANDAR,
DANDAR & DANDAR, P.A.,

Plaintiffs-Appellants,

versus

CHURCH OF SCIENTOLOGY FLAG SERVICE ORGANIZATION, INC.,
F. WALLACE POPE, JR.,
Wally,
JOHNSON POPE BOKOR RUPPEL & BURNS L.L.P.,
DAVID MISCAVIGE,

Defendants-Appellees,

ROBERT V. POTTER, JR.,

Defendant.

________________________

Appeal from the United States District Court
for the Middle District of Florida
________________________

(August 10, 2015)
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Before ED CARNES, Chief Judge, HULL and ROSENBAUM, Circuit Judges.

PER CURIAM:

Kennan Dandar and Dandar & Dandar, P.A. (collectively “Dandar”) appeal

from the district court’s dismissal of their 42 U.S.C. § 1983 suit against the Church

of Scientology Flag Service Organization, Inc., et al. (the Church), seeking to

enjoin a state court from imposing sanctions and costs against Dandar. On appeal,

Dandar argues that the district court erred in dismissing the declaratory and

injunctive claims based on Younger 1 abstention because the state court does not

have jurisdiction to impose sanctions against him, and the state court’s proceeding

is not “uniquely in furtherance of the state courts’ ability to perform their judicial

functions.” Sprint Commc’ns, Inc. v. Jacobs, 134 S.Ct. 584, 588, 187 L.Ed.2d 505

(2013). Dandar also argues that the state proceeding is in bad faith and he will

suffer irreparable injury if it is allowed to go forward, and therefore, Younger

abstention is not appropriate. After a thorough review of the record, we affirm. 2

I.

This appeal presents the latest development in a long-standing dispute

between Dandar and the Church. In 1997, Dandar represented the Estate of Lisa

McPherson in a wrongful-death case against the Church in a Florida state court.

1
Younger v. Harris, 401 U.S. 37 (1971).
2
Dandar’s unopposed motion to file a reply brief out of time is granted.

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The case ultimately settled in 2004, and, as part of the settlement, Dandar agreed to

refrain from “any adversarial proceedings of any description against the [Church]

under any circumstances at any time.” The settlement agreement provided that the

state court overseeing the McPherson case would “retain jurisdiction to enforce the

executory terms of this Confidential Settlement Agreement . . . .” Despite the

settlement agreement, Dandar filed a wrongful-death action against the Church in

2009 in federal court on behalf of the Estate of Kyle Brennan.

The Church sought to enforce the terms of the McPherson settlement in state

court, and Dandar moved to declare the settlement agreement void. The state court

ordered Dandar to withdraw from the Brennan case, held him in contempt, and

issued monetary sanctions.3 While that dispute was on-going, Dandar filed the

instant action in federal court under the Declaratory Judgment Act and 42 U.S.C.

§ 1983, seeking an injunction to prevent a final hearing in state court on damages

connected to his violation of the settlement agreement. The Church moved to

dismiss based on Younger abstention. The district court granted the motion with

respect to Dandar’s request for declaratory and injunctive relief and stayed

3
Dandar filed an “involuntary motion to withdraw” in the Brennan case, which the
federal district court denied. After the state court ordered Dandar to show cause why he should
not be held in criminal contempt for failing to follow the court’s order, the federal district court
enjoined the state court’s enforcement of the sanction order. This court reversed. See Estate of
Brennan ex rel. Britton v. Church of Scientology Flag Service Org., 645 F.3d 1267, 1269 (11th
Cir. 2011). The district court later granted summary judgment in favor of the Church in the
Brennan case, and this court affirmed. See Estate of Brennan ex rel. Britton v. Church of
Scientology Flag Service Org., 490 F. App’x 229 (11th Cir. 2012) (unpublished).

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Dandar’s § 1983 claim for damages pending completion of the state-court

proceeding.

On appeal, this court vacated and remanded for reconsideration in light of

the Supreme Court’s decision in Sprint Communications, Inc. In March 2014, the

state court entered a final judgment, imposing sanctions, fees, and costs in excess

of $1 million. Dandar’s appeal from the state-court order is pending. (See Florida

Second District Court of Appeal Docket No. 2D14-1511).

When the district court reconsidered the case on remand, it again concluded

that abstention was appropriate. The court found that the state-court proceeding

was a “civil proceeding involving certain orders . . . uniquely in furtherance of the

state courts’ ability to perform their judicial functions.” Sprint Commc’ns, Inc.,

134 S.Ct. at 591 (citations omitted). The district court noted that the pending

appeal in state court did not change its analysis because Dandar raised the issue of

the state court’s jurisdiction to sanction him in both the state-court and federal

proceedings. The district court further found that the additional abstention factors

in Middlesex County Ethics Committee v. Garden State Bar Association, 457 U.S.

423 (1982), supported abstention, and that none of the exceptions to abstention,

such as bad faith or irreparable injury, applied. Accordingly, the court dismissed

Dandar’s claims for declaratory and injunctive relief, and stayed his claims for

damages under § 1983. This is Dandar’s appeal.

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II.

We review a district court’s abstention decision for an abuse of discretion.

31 Foster Children v. Bush, 329 F.3d 1255, 1274 (11th Cir. 2003). Federal courts

have a “virtually unflagging obligation” to hear cases for which the courts have

jurisdiction. Id. Thus, “non-abstention remains the rule.” Id. The Younger

abstention doctrine is “an extraordinary and narrow exception” to that rule. Green

v. Jefferson Cnty. Comm’n, 563 F.3d 1243, 1251 (11th Cir. 2009) (internal

citations omitted). The special circumstances that render abstention appropriate

are limited to situations in which there is: (1) a parallel and pending state criminal

proceeding; (2) a state civil enforcement proceeding; or (3) a state civil proceeding

involving an order that is “uniquely in furtherance of the state courts’ ability to

perform their judicial functions.” Sprint Commc’ns, Inc., 134 S.Ct. at 588, 591.

Once the court finds one of these exceptional circumstances is present, there

are “additional factors” to be considered. Id. at 593 (citing Middlesex Cnty. Ethics

Comm., 457 U.S. at 432). These include circumstances in which there is an

ongoing state judicial proceeding that implicates important state interests and

provides an adequate opportunity to raise federal challenges. Id.

Even if one of the three circumstances exists, and the Middlesex County

factors favor abstention, Younger abstention is not appropriate when “(1) there is

evidence that the state proceedings are motivated by bad faith; (2) irreparable

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injury would occur; or (3) there is no adequate alternative state forum where

constitutional issues can be raised.” Hughes v. Att’y Gen. of Fla., 377 F.3d 1258,

1263 n.6 (11th Cir. 2004) (citing Younger, 401 U.S. at 45, 53-54). To establish the

bad faith exception, a litigant must make a substantial allegation that shows actual

bad faith. Younger, 401 U.S. at 48. A litigant shows irreparable injury if a state

law is “flagrantly and patently violative of express constitutional prohibitions.”

New Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350,

366 (1989) (NOPSI). Finally, litigants need only be afforded an opportunity to

fairly pursue their constitutional claims in state court in order for Younger

abstention to be appropriate. Juidice v. Vail, 430 U.S. 327, 336 (1976). As long as

the litigant is not procedurally prevented from raising the constitutional claims in

state court and thereafter petitioning for a writ of certiorari in the United States

Supreme Court, this exception to abstention is not triggered. Pompey v. Broward

Cnty., 95 F.3d 1543, 1551 (11th Cir. 1996).

III.

We conclude that the district court did not abuse its discretion in dismissing

Dandar’s claims for declaratory and injunctive relief under the Younger abstention

doctrine. First, the court properly determined that there is a state civil proceeding

involving an order that is “uniquely in furtherance of the state courts’ ability to

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perform their judicial functions.” 4 Sprint Commc’ns, Inc., 134 S.Ct. at 588, 591.

Here, there is a pending state proceeding involving enforcement of a settlement

agreement entered into in a state-court case. And that settlement agreement

specifically provided that the state court retained jurisdiction to enforce its terms.

The state court is thus seeking to protect the viability of its mediation system. 5 Cf.

Juidice, 430 U.S. at 329-30 (requiring abstention where state-court contempt

proceedings were pending because the “contempt power lies at the core of the

administration of a State’s judicial system.”); see also Pennzoil Co. v. Texaco, Inc.,

481 U.S. 1, 13-14 (1987) (concluding that abstention was required to enable a state

court to enforce its own orders). For the district court to address claims that

question the manner in which a state court handles the enforcement of its orders

would directly cause the federal court to interfere with a state court’s

administration of its duties. See NOPSI, 491 U.S. at 359 (abstention is necessary

where a federal injunction would create an “undue interference with state

proceedings.”). Thus, the district court did not abuse its discretion when it found

that the case fell within one of the enumerated circumstances. See Sprint

Commc’ns, Inc., 134 S.Ct. at 591.

4
Because the district court concluded that the third circumstance favoring abstention
was present here, the court did not consider the second circumstance, that is, whether there was a
state civil enforcement proceeding. Sprint Commc’ns, Inc. 134 S.Ct. at 588, 591.
5
Florida Rule of Civil Procedure 1.730 permits a state court to impose sanctions to
enforce the outcome of court-ordered mediation.

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Next, having found that one of the three Younger abstention circumstances

existed, the court properly applied the additional Middlesex County factors to

determine whether abstention was appropriate. In this case, the state proceedings

are judicial in nature and represent important state interests, as state courts must be

empowered to enforce their own orders and judgments. Moreover, Dandar has had

opportunities to raise his federal challenges in these state proceedings and there has

been no procedural bar to his doing so. Pompey, 95 F.3d at 1551.

Finally, none of the exceptions to abstention exist here. Dandar has shown

neither bad faith nor irreparable injury because his arguments for both essentially

challenge the merits of the state-court proceedings, which we and the district court

cannot reach because of the full faith and credit due the state court’s

determinations. Estate of Brennan ex rel. Britton v. Church of Scientology Flag

Serv. Org., Inc., 645 F.3d 1267, 1276, n.5 (11th Cir. 2011) (citing 28 U.S.C.

§ 1738). Accordingly, we affirm the district court’s dismissal.

AFFIRMED.

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