NetJets Association of Shared Aircraft Pilots v. NetJets, Inc.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

NetJets Association of Shared

Aircraft Pilots, Case No. 2:14-cv-2487

Plain, Judge Michael H. Watson

v- Magistrate Judge Jolson

NetJets Aviation, Inc., et al.

Defendants.

OPINION AND ORDER

This case arises out of an already-resolved state court discovery dispute.

The Delaware Court of Common Pleas ordered NetJets Association of Shared

Aircraft Pilots (“NJASAP”) to produce certain screenshots of its intra-union

message board. Dissatisfied with that order, NJASAP moves this Court to

intervene. But this Court, like all lower federal courts, lacks jurisdiction over

“covert appeals” of state court orders under the Rooker-Feldman doctrine. RLR

Invs., LLC v. City of Pigeon Forge, Tenn., 4 F.4th 380, 392 (6th Cir. 2021)

(quoting Van Hoven v. Buckles & Buckles, P.L.C., 947 F.3d 889, 892 (6th Cir.

2020)). For these reasons (elaborated on below),' the Court DENIES NJASAP’s

motion for a temporary restraining order (“TRO”).

' Because the Court decides this case on jurisdictional grounds, it does not analyze the

merits. To do so would be inappropriate. See Stee! Co. v. Citizens for Better Env’'t, 523

U.S. 83, 94 (1998) (“Without jurisdiction the court cannot proceed at all in any causef[.]”):;

Sinochem Intern. Co. v. Malaysia Intern. Shipping Corp., 549 U.S. 422 (U.S. 2007).

I. BACKGROUND

A. Prior Federal Litigation

This lawsuit began in 2014 when NJASAP sued NetJets Aviation, Inc.,

NetJets, Inc., and (eventually) Steven Todd Weeber (collectively, “NetJets”).

Compl., ECF No. 1. In its Second Amended Complaint, NJASAP alleged NetJets

“accessed and obtained confidential communications from the password-

protected NJASAP Private Pilots Message Board,” which allows NetJets’ Union-

member pilots to communicate privately with one another (“Message Board”).

Second Am. Compl. J 11-18, ECF No. 86. Relatedly, NetJets (through Weeber)

allegedly impersonated NJASAP members on various social medial platforms

and interfered with NJASAP activity. /d. | 20-36. NJASAP alleged those actions

violated multiple federal and state statutes. /d. {| 37-72.

The parties settled the case in March 2017. After reaching a settlement

agreement (“Settlement Agreement’), they filed a stipulation of dismissal

requesting the Court to retain jurisdiction to enforce that agreement. ECF No.

143. The case has laid dormant since then (more than seven years).

B. | Ongoing Ohio State Court Litigation

NetJets Chief Operating Officer Alan Bobo filed a defamation lawsuit

against NJASAP in the Delaware County Court of Common Pleas in September

2023. Bobo v. NetJets Ass’n of Shared Aircraft Pilots, 23 CV H 09 0662

(Delaware Cnty. C.P. Ct.). That court summarized the facts of the case as

follows:

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Bobo alleges that the Union, on September 6, 2023, published a

statement to its members (“First Defamatory Statement”) claiming that

Bobo, or someone who looked like him, had emerged from his home

and thrown a baseball at a mobile-media truck hired by the Union

while that truck drove through Bobo's neighborhood, resulting in

damage to the truck (“Truck-Baseball Incident’). The First

Defamatory Statement informed the Union’s members that law

enforcement was investigating the incident. On September 13, 2023,

the Union published a second statement (“Second Defamatory

Statement”), in which the Union claimed that a police report supported

the Union's contention that an individual threw a baseball at the

mobile-media truck near Bobo’s house, though Bobo’s address was

redacted in that police report.

Mot. Ex. B (“Discovery Order”), ECF No. 148, PAGEID # 3953-54.

In August 2024, as part of civil discovery, Bobo requested screenshots of

all communications between NJASAP members on the Message Board that

related to the First Defamatory Statement, the Second Defamatory Statement,

Bobo, the defamation lawsuit, or the Truck-Baseball Incident. /d. at

PAGEID # 3955. NJASAP objected to the discovery request, citing: (i) union

privilege and associational privilege under the First Amendment; (ii) federal labor

law; and (iii) the Settlement Agreement. /d. NJASAP also moved for a protective

order, in which it asked the state court to review the Settlement Agreement. /d.

The state court granted Bobo’s motion to compel (“Discovery Order’). /d.

at PAGEID # 3963. The state court (i) denied the existence of a union privilege

and associational privilege, id. at PAGEID # 3957-59, and (ii) rejected the

argument that federal labor law protects against disclosure of routine

communication among union members, id. at PAGEID # 3960-61. On (iii) the

Settlement Agreement, the state court wrote:

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The Union fails to meet its burden to justify a protective order. Bobo

is not a party to this alleged confidential settlement agreement. The

Union fails to provide any details about the scope of that agreement's

discovery bar or how it applies to the discovery sought by Bobo.

Moreover, no contract between two private parties requiring

confidentiality can supersede the power of the court to order that

information be produced in discovery. | cannot, therefore, conclude

on the information provided by the Union that this undisclosed

confidential settlement agreement between the Union and a third

party bars the production of the communications sought by Bobo.

The Union, alternatively, requests an in camera review by the court of

the communications to be produced and the settlement agreement

prior to any production. A party is not entitled, as a matter of right, to

an in camera hearing when privilege is asserted. Before engaging in

an in camera review to determine whether privilege is applicable, the

judge should require a showing of a factual basis adequate to support

a good faith belief by a reasonable person that in camera review of

the materials may reveal evidence establishing an applicable privilege

or that the privilege is outweighed by other rights. Given that the

Union has presented no factual evidence to warrant an in camera

review, | deny its motion for an in camera-review hearing.

Id. at PAGEID # 3962-63 (internal citations and quotations omitted). But,

‘[rlecognizing the potential risk of retaliation against union members[,]” the state

court granted NJASAP’s motion for a protective order in part and subjected

NJASAP’s production to several restrictions. /d. at PAGEID # 3963.2

2 The Discovery Order included the following protections: “(1) The documents produced

by the Union from its private online message board, and any copies thereof, may not be

used outside of this case; (2.) The documents may be shared only with: the court and

court personnel, attorneys and their staff, the parties, witnesses, expert witnesses, and

court reporters; (3.) Documents must be labeled “Confidential - Subject to Protective

Order”; (4.) All documents produced must be returned to the Union at the end of this

case, or if they contain work product, destroyed by Bobo’s attorneys; and (5.) With leave

of court and for good cause shown, these documents, when filed in court, may be filed

under seal if redacted versions are attached to the related filing on the public docket.”

Discovery Order at PAGEID # 3963.

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Rather than appeal the Discovery Order,* NJASAP moved for a TRO in

this Court (two weeks after receiving the Discovery Order).

C. NJASAP’s Motion for a TRO

In its TRO Motion, NJASAP seeks a mandatory injunction requiring Bobo

to rescind his state-court discovery request and a negative injunction requiring

Bobo to refrain from requesting communications from the Message Board going

forward. ECF No. 148. NJASAP premises its motion on a line in a letter that the

Settlement Agreement required NetJets managers to send. Mot. Ex. A, ECF No

148, PAGEID #: 3952 (“Letter”). In the Letter, NetJets told its managers they

should “not request or accept content originally posted on the NJASAP Message

Board” “unless required by law[.]” /d. NJASAP reads the Letter (including this

line) as an operative part of the Settlement Agreement. A NetJets manager thus

violates the Settlement Agreement, on NJASAP’s view, if they “request” Message

Board posts. And, NJASAP continues, the ban on “request[s]” extends to civil

3 The Discovery Order may be a final appealable order. Under Ohio law, an order that

“grants or denies a provisional remedy’ is final if:

(a) The order in effect determines the action with respect to the provisional

remedy and prevents a judgment in the action in favor of the appealing party

with respect to the provisional remedy[, and]

(b) The appealing party would not be afforded a meaningful or effective

remedy by an appeal following final judgment as to all proceedings, issues,

claims, and parties in the action.

Ohio Rev. Code § 2505.02(B)(4). On that basis, Ohio courts have held some discovery

orders to be final and appealable. See, e.g., Burnham v. Cleveland Clinic, 89 N.E.3d

536, 544 (Ohio 2016) (“An order compelling the production of materials alleged to be

protected by the attorney-client privilege is a final, appealable order under R.C.

2505.02(B)(4)”).

Case No. 2:14-cv-2487 Page 5 of 11

discovery requests. Ergo, Bobo breached this obligation by requesting Message

Board screenshots through discovery in his state court defamation case.

NetJets, in response, denies that a civil discovery request violates the

Settlement Agreement. The plain language of the Settlement Agreement, it

argues, only obligates NetJets’ CEO and Compliance Officer to send the Letter to

NetJets managers. In NetJets’ view, the recipients of the letter (NetJets

managers) had no contractual obligation to obey its contents. Mining a similar

vein, NetJets asserts that the Settlement Agreement does not bind Bobo, who

was not a party to it. Even if it had any operative legal effect on Bobo, according

to NetJets, the “request” language in the letter does not extend to civil discovery

requests (much less prohibit a court from ordering production). NetJets closes

by invoking the Anti-Injunction Act. 28 U.S.C.A. § 2283.

Bobo has also moved to intervene. Mot., ECF No. 149.

ll. DISCUSSION

A. Legal Framework

Before reaching the merits, a Court must determine whether it has

jurisdiction. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 101 (1998).

No party here challenges this Court’s jurisdiction, but the Court has “an

independent obligation to determine whether subject-matter jurisdiction exists,

even when no party challenges it.” Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010)

(citations omitted).

Case No. 2:14-cv-2487 Page RF nf 14

Federal courts’ jurisdiction “is confined within such limits as Congress sees

fit to prescribe.” The Francis Wright, 105 U.S. 381, 385 (1881); accord Keene

Corp. v. United States, 508 U.S. 200, 207 (1993). Congress has prescribed

jurisdiction to review state court judgments to the United States Supreme Court

only, not to lower federal courts. See 28 U.S.C. § 1257. And so, by negative

inference, lower federal courts (like this District Court) lack jurisdiction to review

state court judgments. See Kovacic v. Cuyahoga Cnty. Dep’t of Child. and Fam.

Servs., 606 F.3d 301, 309 (6th Cir. 2010). This negative inference is called the

Rooker-Feldman doctrine. See generally Rooker v. Fid. Tr. Co., 263 U.S. 413

(1923); D.C. Ct. of Appeals v. Feldman, 460 U.S. 462 (1983).

Under the Rooker-Feldman doctrine, as fully stated in Exxon Mobil Corp. v.

Saudi Basic Indus. Corp., this Court lacks jurisdiction in “cases brought by the

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.” 544 U.S. 280 (2005). All aspects

of this description are important, but “[t]he key words are ‘review’ and ‘judgment.””

VanderKodde v. Mary Jane M. Elliott, P.C., 951 F.3d 397, 406 (6th Cir. 2020)

(Sutton, J., concurring). The Court analyzes these “key words” in reverse order.

B. Application

1. The Discovery Order is a “Judgment.”

Although the canonical Rooker-Feldman cases involve final judgments of

the highest state courts, the doctrine also covers interlocutory orders from lower

Case No. 2:14-cv-2487 Page 7 of 11

state courts. RLR, 4 F.4th at 396; see also Pieper v. Am. Arb. Ass’n, 336 F.3d

458, 461-65 (6th Cir. 2003). The logic of applying Rooker-Feldman to

interlocutory orders from lower state courts is “obvious[,]” the Sixth Circuit

observed: “[i]f lower federal courts can’t review the final product of state-court

litigation, why should a lower federal court entertain an interlocutory appeal so

long as a state court hasn’t yet come to a conclusion?” RLR, 4 F.4th at 386; see

also Pieper, 336 F.3d at 464 (“To hold otherwise would allow potential relitigation

of every state-court order”). So, the Discovery Order qualifies as a “judgment,”

even if it is interlocutory. Desmond v. Gains, 183 N.E.3d 1229, 1236 (Ohio App.

7th Dist. 2022) (“Discovery orders generally are interlocutory[.]”).

2. NJASAP asks the Court to “Review” the Discovery Order.

Courts decide whether a plaintiff seeks review of a state-court judgment by

looking at the “source of the injury the plaintiff alleges in the federal complaint.”

McCormick v. Braverman, 451 F.3d 382, 393 (6th Cir. 2006). If the source of a

plaintiff's injury is a state court judgment, then Rooker-Feldman bars jurisdiction.

But if not—if the source of a plaintiff's injury is something else, such as third-

party° action—then lower federal courts have jurisdiction. The Sixth Circuit

4 For the reasons noted above, see, supra, n.3, the Discovery Order might be final and

appealable (not interlocutory). Final appealable orders are more quintessentially

“judgments” than interlocutory orders for Rooker-Feldman purposes. See RLR, 4 F.4th

at 399-406 (Clay, J., dissenting). So if the Discovery Order is final and appealable, that

would reinforce the Court’s conclusion the Discovery Order is a “judgment” justifying

Rooker-Feldman application.

A party other than a state court or the state court loser—often the “state court winner.”

Case No. 2:14-cv-2487 Page Q nf 14

differentiates barred claims from valid claims by sorting them between two

hypothetical cases:

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. This he may not do, regardless of

whether he raised any constitutional claims in state court, because

only the Supreme Court may hear appeals from state-court

judgments.

Further, by focusing on the requirement that the state-court judgment

be the source of the injury, we can see how a suit asking a federal

court to “deny a legal conclusion” reached by a state court could

nonetheless be independent for Rooker-Feldman purposes. 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 394 (quoting Hoblock v. Albany Cnty. Bd. of Elections, 422 F.3d 77, 87-88

(2d Cir.2005)) (cleaned up).

If a case falls between these two poles, the state court order may still

qualify as the “source of the injury” for Rooker-Feldman analysis. For example,

when a third-party acts under the aegis of a state court judgment, Rooker-

Feldman bars a plaintiff's challenge to those acts. See id. (citing Hoblock, 422

F.3d at 88); see also Pieper, 336 F.3d at 460-61.

Case No. 2:14-cv-2487 Paage 9 of 11

The source of the injury here parallels that in Pieper. In Pieper, one party

moved a state court to compel arbitration (just as Bobo moved a state court to

compel discovery here). The state court granted that motion to compel (both in

Pieper and here). The “state court loser” then sued in federal court, seeking an

injunction (of the arbitration in Pieper and of the production request here). Based

on these facts, the Sixth Circuit in Pieper affirmed the district court’s holding that

Rooker-Feldman doctrine barred its jurisdiction, even though the injury originally

traced back to the “state court winner's” motion to compel arbitration. Applying

Pieper logic here,® this Court holds that it lacks jurisdiction because of the

Rooker-Feldman doctrine, even though Plaintiff's injury traces back to Bobo’s

motion to compel discovery.’

Plaintiff might protest that Pieper was decided before the U.S. Supreme Court cabined

Rooker-Feldman doctrine in Exxon v. Saudi Basic. Yet Pieper remains good law; the

Sixth Circuit has said so expressly: “[w]e developed the source-of-the-injury test to

implement Exxon’s holding, and Pieper faithfully applies that test.” RLR, 4 F.4th at 392:

see also id. at 390 (“Pieper has not been overruled by our en banc court. And the

Supreme Court has not offered any ‘directly applicable’ analysis that is inconsistent with

Pieper. So Pieper binds us.”).

’ Circumstantial evidence corroborates that the Discovery Order is the source of

NJASAP’s injury. Bobo first issued the discovery request that NJASAP complains of in

August 2024. NJASAP could have moved this Court for an injunction right then, but

instead it sat on its hands, for months. NJASAP sought to involve this Court only after

the state court issued its Discovery Order (and, even then, waited another two weeks).

That timing bolsters the Court’s conclusion that the Discovery Order is the source of

NJASAP'’s injury for Rooker-Feldman doctrine purposes.

Case No. 2:14-cv-2487 Page 10 of 11

lll. CONCLUSION

Because the Court lacks jurisdiction under Rooker-Feldman doctrine to

issue the injunction NJASAP requests, NJASAP’s Motion for a TRO is DENIED.

NJASAP’s Motion requests an injunction only, even though NJASAP styled its

Motion as a motion for both a TRO “and to enforce the Settlement Agreement.”

Having rejected the only remedy NJASAP seeks, the Court disposes of

NJASAP’s entire Motion. Bobo’s motion to intervene is accordingly DENIED AS

MOOT.

The Clerk shall terminate ECF Nos. 148 and 149 as pending motions.

IT IS SO ORDERED. | : , lew

MICHAEL H. WATSON, JUDGE

UNITED STATES DISTRICT COURT

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