Un Planters Bnk Natl v. Gavel

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS April 29, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-30409

UNION PLANTERS BANK NATIONAL ASSOCIATION,

Plaintiff — Intervenor Defendant — Appellee,

versus

TARIQ MAURICE SALIH, individually and as administrator of the
succession of Canty,

Intervenor Plaintiff — Appellant,

versus

JOHN A. GAVEL, JR.,

Defendant — Intervenor Defendant — Appellee

Appeal from the United States District Court
for the Eastern District of Louisiana
(No. 02-CV-1224-T)

Before JONES, WIENER, and PRADO, Circuit Judges.

WIENER, Circuit Judge:

In this appeal, we are asked to determine whether a federal

district court can enjoin the production of information ordered

produced by a Louisiana state court’s subpoena duces tecum.

Because the Rooker-Feldman doctrine forecloses federal subject

matter jurisdiction in this case, we vacate the judgment of the

district court and remand with instructions to dismiss this action
in its entirety.

I. FACTS & PROCEEDINGS

In January 2001, the Intervenor Plaintiff—Appellant Tariq

Salih sued the Plaintiff—Intervenor Defendant—Appellee Union

Planters Bank National Association (“UPB” or “Union Planters”) in

Louisiana state court. Salih’s putative class-action complaint

alleged that UPB violated Louisiana law by engaging in “forced-

placement” of flood insurance, causing UPB’s borrowers to pay

excessive insurance premiums. Specifically, Salih alleged that UPB

regularly required its borrowers to carry flood insurance in an

amount greater than that required by law and as specified in the

mortgage agreements securing UPB’s underlying loans. Salih

asserted that instead of arranging for low-cost flood insurance

through the pool of insurers approved by the Federal Emergency

Management Agency, UPB force-placed insurance coverage through WNC

Insurance Services, Inc. (“WNC”), a California-based third-party

“surplus line” insurance broker. At all relevant times, the

Defendant—Intervenor Defendant—Appellee John A. Gavel, Jr. was

WNC’s agent in Louisiana.

In early 2002, at Salih’s request, the clerk of the subject

state court issued third-party deposition and document subpoenas to

WNC and Gavel. The subpoenas sought, inter alia, the names and

addresses of UPB’s Louisiana borrowers whose flood insurance had

been issued through WNC. As respondents to the subpoena, WNC and

Gavel filed a joint motion for a protective order and to quash the

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subpoenas (the “Motion to Quash”). They argued that their

production of the information sought by Salih would (1) violate La.

Rev. Stat. § 6:333, a state statute that regulates the disclosure

by banks of their customer’s financial records and (2) run afoul of

the Gramm-Leach-Bliley Act, 15 U.S.C. §§ 6801, et seq. (2000) (the

“GLBA”).1 UPB filed no formal pleading to join or otherwise

endorse the Motion to Quash, but at oral argument, counsel for UPB

voiced support for it, citing the GLBA as controlling authority.

The Louisiana trial court denied the Motion to Quash, but

limited the scope of the document subpoena. WNC and Gavel jointly

filed an emergency application for supervisory writs to the

cognizant Louisiana Court of Appeal. In their writ application,

WNC and Gavel relied on Louisiana law and the GLBA as support for

their argument that Salih’s subpoena “call[ed] for disclosure of

information about loan defaults that borrowers would likely not

want Union Planters or anyone else to disclose.”2 The Louisiana

appellate court quashed the subpoena directed to WNC, but denied

1
For itself, WNC also challenged the subpoena on the
alternative ground that, because Louisiana’s long-arm statute does
not extend the subpoena power of Louisiana courts beyond state
lines, WNC could not, as a non-resident third party, be forced to
produce documents at a deposition in Louisiana. See Phillips
Petroleum Co. v. OKC Ltd. P’ship, 634 So. 2d 1186, 1188 (La. 1994)
(“Whereas the long-arm statute extends Louisiana’s personal
jurisdiction over persons or legal entities beyond Louisiana’s
borders, there is no similar authority for extending the subpoena
power of a Louisiana court beyond state lines to command in-state
attendance of nonresident nonparty witnesses.”).
2
Emphasis in original.

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such relief for Gavel. No party sought review of this ruling by

the Louisiana Supreme Court, and the trial court further modified

the subpoena to clarify what Gavel was required to produce.

Relying on the GLBA, UPB then filed the instant action in the

district court to obtain temporary and permanent injunctive relief,

seeking specifically to restrain Gavel from disclosing the

information that he was ordered to produce pursuant to the modified

state court subpoena.

After a hearing, the district court issued a preliminary

injunction prohibiting Gavel “only from disclosing documents,

and/or information, as set forth in the modified subpoena, and

subsequent court clarifications, which would violate the GLBA,” and

prohibiting Salih “from taking any action in the state court which

would render this [federal district] court’s order ineffective or

jeopardize the parties who were directed to comply with it.”3

After further argument and another hearing, the district court made

the preliminary injunction permanent.4 Salih timely filed a notice

of appeal.

3
Union Planters Bank, N.A. v. Gavel, No. Civ. A. 02-1224,
2003 WL 1193671, *1-2 (E.D. La. Mar. 12, 2003) (unpublished)
(emphasis in original).
4
See id. at *9. The district court ruled that “neither res
judicata, nor abstention bars the injunctive relief sought by Union
Planters under the circumstances” because the district court
determined that “Union Planters, at no time, had a full and fair
opportunity to have its position considered as it was not a direct
party-in-interest to those proceedings involving the subpoena
issued to Gavel.” Id. at *5-6.

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 II. ANALYSIS

A. STANDARD OF REVIEW

“We exercise plenary, de novo review of a district court’s

assumption of subject matter jurisdiction.”5

B. SUBJECT MATTER JURISDICTION AND THE ROOKER-FELDMAN DOCTRINE

Salih did not specifically raise Rooker-Feldman on appeal

until his reply brief, but federal courts are duty-bound to examine

the basis of subject matter jurisdiction sua sponte, even on

appeal.6 As an initial matter, we must analyze the nature of the

Louisiana state court discovery order through the lens of the

Rooker-Feldman doctrine. “[T]he Rooker-Feldman doctrine only

applies insofar as a state court judgment merits full faith and

credit.”7 We must therefore consider how the Louisiana courts

would treat the discovery order at issue. When we do so, we

encounter two sequential questions: (1) Would Louisiana courts give

preclusive effect to the order requiring Gavel to produce the

requested information; (2) if so, is UPB —— which is not the named

5
Hoskins v. Bekins Van Lines, 343 F.3d 769, 772 (5th Cir.
2003) (quoting Local 1351 Int’l Longshoremens Ass’n v. Sea-Land
Serv., Inc., 214 F.3d 566, 569 (5th Cir. 2000)).
6
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95
(1998); Weekly v. Morrow, 204 F.3d 613, 615 & n.6 (5th Cir. 2000).
7
Richard v. Hoechst Celanese Chem. Group, Inc., 355 F.3d 345,
350 (5th Cir. 2003) (citing Matsushita Elec. Indus. Co., Ltd. v.
Epstein, 516 U.S. 367, 373 (1996); In re Lease Oil Antitrust
Litigation, 200 F.3d 317, 319 n.1, 320 (5th Cir. 2000); Gauthier
v. Continental Diving Svcs., Inc., 831 F.2d 559, 561 (5th Cir.
1987)).

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respondent to the subpoena —— precluded from mounting a collateral

attack in federal court against enforcement of the order?

1. The Discovery Order Was a “Final” State Court Judgment.

Under Article 2083 of the Louisiana Code of Civil Procedure

(“LCCP”), “[a]n appeal may be taken from a final judgment rendered

in causes in which appeals are given by law whether rendered after

hearing or by default, [or] from an interlocutory judgment which

may cause irreparable injury....”8 LCCP Article 1841 distinguishes

between interlocutory and final orders by declaring that “[a]

judgment that does not determine the merits but only preliminary

matters in the course of the action is an interlocutory judgment”;

but “[a] judgment that determines the merits in whole or in part is

a final judgment.”9 Louisiana courts have interpreted these code

provisions to mean that a “ruling denying a motion to quash a

subpoena duces tecum brought by a non-party to the action

determines in whole the merits of this single issue between the

parties.... It is, therefore, a final appealable judgment.”10

8
LA. CODE CIV. PROC. ANN. art. 2083(A) (West 2002).
9
LA. CODE CIV. PROC. ANN. art. 1841 (West 2003).
10
Larriviere v. Howard, 771 So. 2d 747, 750 (La. App. 3d Cir.
2000). Accord R. J. Gallagher Co. v. Lent, Inc., 361 So. 2d 1231,
1231 (La. App. 1st Cir. 1978); Berard v. American Emp. Ins. Co.,
246 So. 2d 686, 687 (La. App. 1st Cir. 1970) (“The decree
determines in whole the merits of the single issue between the
parties to the controversy concerned. It is therefore a final
judgment.”). See also 3 Steven R. Plotkin, LOUISIANA CIVIL PROCEDURE
404 (West 2003); 1 Frank L. Maraist & Harry T. Lemmon, LOUISIANA CIVIL
LAW TREATISE: CIVIL PROCEDURE § 14.3(4) & n.44 (West 1999 & Supp. 2003).

6
 These precepts of Louisiana law require us to deem the state

court order in question to be a final judgment and accord it full

faith and credit for Rooker-Feldman purposes. UPB nevertheless

insists that, because WNC and Gavel did not pursue an appeal under

LCCP Article 2083, but instead sought only a supervisory writ under

LCCP Article 2201,11 the trial court’s order was merely

interlocutory in nature, and therefore has no preclusive effect

under the Rooker-Feldman doctrine. This reasoning is unpersuasive.

In considering whether the collateral attack on a state court

judgment in federal court is precluded by the Rooker-Feldman

doctrine, the question we ask is not whether the order at issue

was, in fact, appealed, but only whether the order was a “final

state court judgment in a particular case” and thus was

appealable.12 The actions actually taken by WNC and Gavel —— or

even UPB —— are immaterial. Full faith and credit attached by

virtue of the state court’s ruling on the Motion to Quash being

final and appealable under Louisiana law —— regardless of whether

it was actually contested through the usual procedures for state

11
LA. CODE CIV. PROC. ANN. art. 2201 (West 2002) (“Supervisory
writs may be applied for and granted in accordance with the
constitution and rules of the supreme court and other courts
exercising appellate jurisdiction.”). See generally Albert Tate,
Jr., Supervisory Powers of the Louisiana Courts of Appeal, 38 TUL.
L. REV. 429 (1964).
12
Dist. of Columbia Court of Appeals v. Feldman, 460 U.S. 462,
486 (1983). See also id. at 476 (explaining that federal district
courts are “without authority to review final determinations of”
state appellate courts in judicial proceedings because “[r]eview of
such determinations can be obtained only in this [Supreme] Court”).

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appellate review.

2. UPB Is Barred From Seeking Inferior Federal Court Review
of the State Discovery Order on Federal Grounds.

The second issue that we must address is presented by UPB’s

contention that it was technically not a party to the Louisiana

state court order and therefore cannot be subject to its preclusive

effect.13 This argument is likewise without merit. UPB was the

named defendant in the state court proceedings and certainly had

standing to challenge the production of information requested in

the subpoena duces tecum.14 Indeed, the gravamen of UPB’s complaint

in federal court is its asserted interest under the GLBA in

protecting the privacy of its customers’ non-public information ——

an interest that UPB contends will be violated if Gavel is allowed

or required to disclose the contested information to Salih. In

contrast to cases in which the Rooker-Feldman doctrine was held not

to bar federal jurisdiction because the federal plaintiff was not

a party to the state court proceedings,15 UPB was clearly in a

position to seek review of a state court ruling that UPB contends

13
This was, in part, the basis for the district court’s
conclusion that no abstention doctrine barred UPB from presenting
its GLBA challenge in federal court. See supra note 4.
14
See Ouachita Nat’l Bank v. Palowsky, 554 So. 2d 108, 113
(La. App. 2d Cir. 1989) (holding that, because a bank has a clear
and undisputable interest in resisting the production of its
customers’ records, “the bank has standing to object to the
production of [those] records”).
15
E.g., In re Erlewine, 349 F.3d 205, 210 (5th Cir. 2003);
Johnson v. De Grandy, 512 U.S. 997, 1006 (1994).

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was erroneously entered. The fact that UPB unilaterally chose not

to join WNC and Gavel’s Motion to Quash or to seek appellate

remedies beyond the Louisiana Court of Appeal is of no

consequence.16 We have explained that a party collaterally

attacking a state court judgment cannot circumvent Rooker-Feldman’s

reach by deliberately bypassing available state procedures for

judicial review:

A rejected applicant’s deliberate bypass of those
procedures that envisioned (ultimately) a reviewable
final state-court judgment, itself under Feldman not
subject to federal district-court review, should not, it
would seem, entitle the applicant to a review of his
constitutional claims by a federal district court that
would have been unavailable to him if he had pursued his
claim to final state court judgment.17

At bottom, UPB’s contention that it was not a party to the

Louisiana discovery order stands for naught in the Rooker-Feldman

calculus.

C. THE STATE AND FEDERAL PROCEEDINGS WOULD BE “INEXTRICABLY INTERTWINED”

16
As counsel for UPB correctly conceded at oral argument,
“[i]t’s possible, of course, that Union Planters or any other party
could have filed an application for extraordinary writ in the
[Louisiana] Supreme Court....” Indeed, UPB also had the option of
filing an interlocutory appeal under LCCP Article 2083(A), which
permits appeals from interlocutory judgments which may cause
“irreparable injury.” See supra text accompanying note 8. UPB’s
prayer for injunctive relief in federal court was predicated on
precisely this assertion. See Union Planters Bank, 2003 WL
1193671, at *2 (“[I]t is submitted that ... Union Planters faces
irreparable injury.”).
17
Thomas v. Kadish, 748 F.2d 276, 282 (5th Cir. 1984). See
also Feldman, 460 U.S. at 483 n.16 (“By failing to raise his claims
in state court a plaintiff may forfeit his right to obtain review
of the state court decision in any federal court.”).

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 Reduced to its essence, the Rooker-Feldman doctrine “holds

that inferior federal courts do not have the power to modify or

reverse state court judgments.”18

The Supreme Court has definitively established, in what
has become known as the Rooker-Feldman doctrine, that
“federal district courts, as courts of original
jurisdiction, lack appellate jurisdiction to review,
modify, or nullify final orders of state courts.” “If a
state trial court errs the judgment is not void, it is to
be reviewed and corrected by the appropriate state
appellate court. Thereafter, recourse at the federal
level is limited solely to an application for a writ of
certiorari to the United States Supreme Court.”19

In this case, UPB filed the instant suit in federal court to

nullify the enforcement of a state discovery order that had become

final and appealable. Rather than seek relief from the Louisiana

Supreme Court (and if necessary from the Supreme Court of the

United States by applying for a writ of certiorari), UPB asked the

federal district court to act as a de facto appellate court and

reverse the state courts. This is precisely what the Rooker-

Feldman doctrine does not tolerate.

In Weekly v. Morrow, the federal plaintiff filed a claim in

the Louisiana Office of Worker’s Compensation, and his employer

sought discovery of his Social Security records.20 The plaintiff

asserted a federal privacy interest in his Social Security records

18
Reitnauer v. Texas Exotic Feline Found., Inc. (In re
Reitnauer), 152 F.3d 341, 343 (5th Cir. 1998).
19
Weekly, 204 F.3d at 615 (quoting Liedtke v. State Bar of
Texas, 18 F.3d 315, 317 (5th Cir. 1994)).
20
Id. at 614.

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and objected to his employer’s request for disclosure. The

administrative hearing officer assigned to his case rejected this

argument and ordered the plaintiff to sign a form consenting to the

disclosure.21 After exhausting his appellate remedies in the

Louisiana state court system and unsuccessfully petitioning the

Supreme Court of the United States for certiorari, the federal

plaintiff “filed an action in federal district court seeking to

enjoin [the administrative hearing officer] from taking any steps

to enforce her disclosure order.”22 The district court dismissed

the federal suit on grounds of Younger abstention. We affirmed,

but we held that it is the Rooker-Feldman doctrine, not Younger

abstention, that required affirmance of the district court’s

dismissal because federal courts “cannot sit as appellate courts in

review of state court judgments.”23

Consistent with our earlier decision in Weekly,24 we reiterate

that inferior federal courts are without subject matter

jurisdiction under the Rooker-Feldman doctrine to enjoin the

21
Id.
22
Id.
23
Id. at 615-16.
24
Our holding also comports with Doe & Assocs. Law Offices v.
Napolitano, 252 F.3d 1026 (9th Cir. 2001), and Narragansett Indian
Tribe v. Banfield, 294 F. Supp. 2d 169 (D.R.I. 2003). Both cases
held that the Rooker-Feldman doctrine foreclosed district court
jurisdiction over federal suits in which the federal plaintiffs
effectively sought to reverse and nullify state court discovery
orders. Doe & Assocs., 252 F.3d at 1029-30; Banfield, 294 F. Supp.
2d at 171-74.

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enforcement of state court discovery orders that have become final

if the federal plaintiff was legally entitled to challenge the

discovery order through the state appellate channels to the Supreme

Court of the United States.25 As this is precisely the issue that

is before us today, we must vacate the order of the district court

for lack of federal subject matter jurisdiction.

III. CONCLUSION

The relief sought by UPB in the instant action is an outright

reversal of a final, appealable discovery order of the Louisiana

courts. As the Rooker-Feldman doctrine eschews subject matter

jurisdiction in this case, we vacate the district court’s order26

and remand with instructions to the district court to dismiss this

action for lack of jurisdiction.

25
Our ruling today should not be interpreted as necessarily
allowing the Rooker-Feldman doctrine to defeat inferior federal
court jurisdiction over federal challenges to state court orders
that are interlocutory and non-appealable. Courts are divided over
this issue. Compare, e.g., Banfield, 294 F. Supp. 2d at 173-74;
Doe & Assocs., 252 F.3d at 1030; Pieper v. Am. Arbitration Ass’n,
Inc., 336 F.3d 458, 462-65 (6th Cir. 2003) (collecting cases);
Richardson v. Dist. of Columbia Court of Appeals, 83 F.3d 1513,
1515 (D.C. Cir. 1996) with Cruz v. Melecio, 204 F.3d 14, 21 n.5
(1st Cir. 2000); David Vincent, Inc. v. Broward County, Fla., 200
F.3d 1325, 1332 (11th Cir. 2000). Our decision today does not
implicate this split of authority for three reasons: (1) The state
order at issue here was final and appealable under state law; (2)
UPB had standing and an opportunity under state law to seek
appellate review of the order; and (3) UPB’s federal claims are
clearly “inextricably intertwined” with the challenged state court
order.
26
As the district court had no jurisdiction to hear this case,
its order and opinion on the merits of UPB’s GLBA claim is vacated
in its entirety, as well.

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ORDER VACATED; REMANDED with instructions.

13