Gallas v. Supreme Court of Pennsylvania

Opinions of the United

2000 Decisions States Court of Appeals

for the Third Circuit

5-5-2000

Gallas v. Supreme Court of Pennsylvania, et al.

Precedential or Non-Precedential:

Docket 98-2138

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Filed May 5, 2000

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 98-2138

GEOFF GALLAS

v.

THE SUPREME COURT OF PENNSYLVANIA; THE FIRST

JUDICIAL DISTRICT OF PENNSYLVANIA; DEMOCRATIC

CITY COMMITTEE; THE PHILADELPHIA CHAPTER OF

THE TEAMSTERS UNION TEAMSTERS LOCAL 115; DOES

1-100; ROBERT N.C. NIX, JR., HONORABLE, in his

official capacity as CHIEF JUSTICE, SUPREME COURT

OF PENNSYLVANIA; JOHN P. FLAHERTY, JR.,

HONORABLE, in his official capacity as JUSTICE OF THE

SUPREME COURT OF PENNSYLVANIA; STEPHEN A.

ZAPPALA, HONORABLE, individually and in his official

capacity as JUSTICE OF THE SUPREME COURT OF

PENNSYLVANIA; RALPH J. CAPPY, HONORABLE,

individually and in his official capacity as JUSTICE OF

THE SUPREME COURT OF PENNSYLVANIA; RONALD D.

CASTILLE, HONORABLE, in his official capacity as

JUSTICE OF THE SUPREME COURT OF PENNSYLVANIA;

RUSSELL M. NIGRO, HONORABLE, individually and in

his official capacity as JUSTICE OF THE SUPREME

COURT OF PENNSYLVANIA; SANDRA SCHULTZ

NEWMAN, HONORABLE, in her official capacity as

JUSTICE OF THE SUPREME COURT OF PENNSYLVANIA;

NANCY SOBOLEVITCH, individually and in her official

capacity as COURT ADMINISTRATOR OF PENNSYLVANIA;

ALEX BONAVITACOLA, HONORABLE, individually and in

his official capacity as PRESIDENT JUDGE, COURT OF

COMMON PLEAS; ESTHER SYLVESTER, HONORABLE,

individually and in her official capacity as JUDGE,

COURT OF COMMON PLEAS FAMILY DIVISION; VINCENT

FUMO, HONORABLE, individually and in his official

* Honorable Arthur L. Alarcon, Senior Judge of the United States

Court

of Appeals for the Ninth Circuit, sitting by designation.

capacity as PENNSYLVANIA STATE SENATOR; JOSEPH

DIPRIMIO, individually and in his official capacity as

DEPUTY COURT ADMINISTRATOR FAMILY DIVISION,

DOMESTIC RELATIONS BRANCH; ROBERT BRADY,

individually and in his official capacity as CHAIRMAN,

DEMOCRATIC CITY COMMITTEE; JOHN MORRIS,

individually and in his official capacity as Secretary-

Treasurer of Teamsters Local Union No. 115

Geoff Gallas,

Appellant

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civ. No. 96-06450)

District Judge: Honorable William H. Yohn, Jr.

Argued March 20, 2000

BEFORE: MANSMANN, GREENBERG, and

ALARCON,* Circuit Judges

(Filed: May 5, 2000)

Glenn J. Brown

246 West Broad Street

Quakertown, PA 18951

Peter G. Friesen (argued)

656 Fifth Avenue, Suite F

San Diego, CA 92101

Attorneys for Appellant

2

William H. Lamb (argued)

William P. Mahon

Lamb, Windle & McErlane, P.C.

24 East Market Street

P.O. Box 565

West Chester, PA 19381-0565

Attorneys for Appellees

Honorable Ralph J. Cappy,

Honorable Stephen A. Zappala,

Honorable Russell M. Nigro, and

Nancy Sobolevitch

Alan J. Davis (argued)

Burt M. Rublin

Ballard Spahr Andrews & Ingersoll,

LLP

1735 Market Street

51st Floor

Philadelphia, PA 19103-7599

Attorneys for Appellee

Honorable Russell M. Nigro

James E. Beasley (argued)

David A. Yanoff

Beasley, Casey & Erbstein

1125 Walnut Street

Philadelphia, PA 19107-4997

Attorneys for Appellees

The First Judicial District of

Pennsylvania,

Honorable Alex Bonavitacola,

Honorable Esther Sylvester,

and Joseph DiPrimio

Richard A. Sprague (argued)

Geoffrey R. Johnson

Sprague & Sprague

Suite 400, Wellington Building

135 South 19th Street

Philadelphia, PA 19103

Attorneys for Appellee

Vincent J. Fumo

3

Gabriel L.I. Bevilacqua

Stephen M. Donweber

Saul, Ewing, Remick & Saul LLP

Centre Square West

1500 Market Street, 38th Floor

Philadelphia, PA 19102

Attorneys for Appellees

Robert Brady and the Democratic

City Committee

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. INTRODUCTION

This matter comes on before this court on appeal from

various orders of the district court dismissing appellant

Geoff Gallas' claims arising under 42 U.S.C. 1983 and

Pennsylvania common law. Gallas brought this action

against various defendants, including the Pennsylvania

Supreme Court and several of its justices, principally

alleging that they terminated him from his position as

Executive Administrator of the First Judicial District of

Pennsylvania in violation of his constitutional rights and

that court personnel unlawfully invaded his privacy when

they publicly disclosed documents from domestic

proceedings in which he was involved. The district court

dismissed or granted the defendants summary judgment on

each of Gallas' claims prior to trial. For the reasons we set

forth herein, we will affirm.

A. Factual Background

On December 19, 1990, the Pennsylvania Supreme

Court, reacting to budgetary and administrative problems

in the Philadelphia courts which comprise the First Judicial

District ("FJD"), issued an order assuming control over the

FJD. J.A. at 304, 412. See In re Blake, 593 A.2d 1267,

1268 (Pa. 1991). Pursuant to the order, the court assigned,

respectively, Justice Ralph Cappy the task of "overseeing

4

the reformation of the Administrative Structure of the

Courts of the First Judicial District," and Justice Nicholas

Papadakos the task of "overseeing the Budgetary Structure"

of those courts. J.A. at 304. The Supreme Court, however,

intended that its oversight of the FJD would be temporary,

with control eventually returned to local judges and

officials. J.A. at 413.

In the summer of 1991, a committee chaired by Justices

James McDermott and Stephen Zappala of the Supreme

Court conducted a search to select an Executive

Administrator who would have the responsibility of

"overseeing the administration of all ministerial functions"

in the FJD's courts. J.A. at 415. This search resulted in

Gallas' hiring for this position effective December 1, 1991.

J.A. at 80, 415. According to Gallas' amended complaint,

during the selection process Justices Zappala and Cappy

and Nancy Sobolevitch, the Court Administrator of

Pennsylvania, conveyed the importance of "instituting a

`merit system' whereby employment and other issues in the

FJD would be strictly governed by proper personnel

processes, qualifications and performance"; these

individuals further indicated to Gallas that "use of political

patronage to fill positions in all three Philadelphia courts

[Court of Common Pleas, Municipal Court, and Traffic

Court] making up the FJD had been a serious problem in

Philadelphia." J.A. at 85.

Gallas' complaint indicates that he "expressed concern

and reticence about taking the job . . . [because]

Philadelphia and its courts were vulnerable to improper

political influence . . . [and] many persons, both inside and

outside the FJD, previously derived improper benefit from

that influence." J.A. at 85-86. This concern led Gallas to

worry about job security, J.A. at 86, and prompted him to

negotiate an oral "severance arrangement" which would

entitle him to certain benefits if he should leave or be

discharged. Supp. App. at 1206-11, 1214, 1708-17.

Gallas served as Executive Administrator for

approximately four and one-half years. According to Gallas'

complaint, during the course of his service various

individuals pressured him to acquiesce in patronage

appointments in the FJD. Gallas claims that in 1992

5

Justices Zappala and Cappy instructed him to

accommodate job appointments favored by two public

figures, Pennsylvania State Senator Vincent Fumo and

Robert Brady,1 the chairman of the Democratic City

Committee. Gallas alleges that Zappala and Cappy

specifically warned him that his failure to honor Fumo's

requests could result in the loss of his job. J.A. at 87-88.

Gallas further alleges that Fumo and Brady and their

respective associates contacted him on multiple occasions

concerning requests that certain individuals be hired or

promoted. J.A. at 87-88. According to Gallas, he resisted

demands for such appointments, and in March 1993, Fumo

and Brady told him that his failure to honor their requests

would lead them to "turn the dogs" on him. J.A. at 88. As

the district court summarized, Gallas endured a"rocky"

tenure as Executive Administrator during which he

"attempted to walk a fine line between accommodating the

personnel requests of local politicians and instituting

objective, process-oriented standards for making personnel

decisions." Gallas v. Supreme Court of Pa. , No. CIV. A. 96-

6450, 1998 WL 22081, at *2 (E.D. Pa. Jan. 22, 1998).

Gallas' service as Executive Administrator came to an

end pursuant to a March 26, 1996 order of the

Pennsylvania Supreme Court (the "March 26 order") which

provided for an "administrative reorganization of the First

Judicial District." According to affidavits from justices of

the Supreme Court, the court issued this order because the

progress that had been achieved during the Supreme

Court's oversight justified returning the FJD to local control.2

J.A. at 412, 425, 427. The March 26 order eliminated the

position of Executive Administrator and created an

Administrative Governing Board for the FJD to be

comprised of the three president judges and the three

administrative judges of the district, along with the

_________________________________________________________________

1. Brady was elected to Congress after this action was instituted. See

Appellee Zappala's Br. at 2 n.1.

2. In April 1993, the Supreme Court vacated its December 19, 1990

order and issued an order lessening its involvement in the day-to-day

operations of the FJD. This order was the first step in the process of

returning the FJD to local control. J.A. at 165, 417. That process

culminated in the March 26, 1996 order. J.A. at 412.

6

Administrator of the Pennsylvania Courts. The order

directed the Administrative Governing Board to select a

Court Administrator and Budget Administrator for the FJD,

with the persons in these two positions being responsible

for many of the duties the Executive Administrator had

performed. The order named Gallas as Budget

Administrator effective April 1, 1996, "[s]ince it is

anticipated that it may take a short time . . . for the

Administrative Governing Board to organize itself."3 J.A. at

308-12.

Meanwhile, there were problems in Gallas' marriage, and

on September 22, 1995, his wife filed a Petition for

Protection from Abuse ("PFA") alleging that he had

physically abused her. J.A. at 92. Gallas claims that court

personnel improperly released this PFA to the public on

three separate occasions. According to Gallas' complaint,

unknown court personnel released the contents of the PFA

to the Democratic City Committee "within two hours" of its

filing. J.A. at 93. Then, on September 26, 1995, the PFA

was released to the Philadelphia Daily News by order of

Esther Sylvester, the Administrative Judge of the Family

Division of the Court of Common Pleas. J.A. at 93.

According to the complaint, the newspaper secured this

order through a request made by one of its reporters to

Joseph DiPrimio, the Deputy Court Administrator of the

Family Court Division.4 J.A. at 92-93. Finally, on or before

March 23, 1996, unknown individuals again publicly

released the PFA, along with the file from Gallas' divorce

proceeding. J.A. at 98.

B. Procedural History

Gallas commenced this action on September 23, 1996,

asserting claims for monetary relief against various

defendants based on his termination and the releases of the

documents from his domestic proceedings. In Counts I-III of

_________________________________________________________________

3. Gallas later unsuccessfully applied for the position of Court

Administrator. J.A. at 423. Gallas is no longer serving as Budget

Administrator. See Appellant's Br. at 13.

4. Gallas alleges that the Philadelphia Daily News reported the contents

of the PFA in a September 27, 1995 article entitled"Court Official a Wife

Beater?" J.A. at 94.

7

his amended complaint, Gallas raised claims under section

1983 for invasion of privacy with respect to the three

releases of the PFA and the release of the divorcefile. In

these counts he named as defendants the Pennsylvania

Supreme Court, the FJD, Judge Sylvester, DiPrimio, and

the Democratic City Committee, along with Teamsters Local

Union No. 115 (the "Teamsters") and 60 Doe defendants.

J.A. at 96-99.5 The main allegation with respect to the

Teamsters is that its secretary-treasurer obtained the PFA

and made false statements about it in a publication entitled

the Court Reporter on September 28, 1995. J.A. at 94, 103.

It appears that the Teamsters became involved with the

FJD and thus Gallas because of its attempt to represent

certain court employees. In Count IV, also brought

pursuant to section 1983, Gallas alleged that his

termination as Executive Administrator violated his First

and Fourteenth Amendment rights because it was

undertaken in retaliation for his opposition to political

patronage and was accomplished without notice and a

hearing. This count named various defendants, including

the Supreme Court and its justices, the FJD, Sobolevitch,

Fumo, and 20 Doe defendants. J.A. at 99-101. In Count V,

Gallas alleged a breach of employment contract against the

Supreme Court and the FJD. J.A. at 101-02. In Count VI,

Gallas alleged that Fumo, Brady, the Democratic City

Committee, and 20 Doe defendants interfered with his

contract for employment as Executive Administrator by

inducing the Supreme Court to terminate him. J.A. at 102-

03. Finally, in Count VII, Gallas alleged defamation against

the Teamsters and its secretary-treasurer. J.A. at 103-04.

The district court dismissed or granted the defendants

summary judgment on each of Gallas' claims in response to

various motions by the defendants. See Gallas v. Supreme

Court of Pa., No. CIV.A. 96-6450, 1998 WL 599249 (E.D.

Pa. Aug. 24, 1998); Gallas v. Supreme Court of Pa., No.

CIV.A. 96-6450, 1998 WL 352584 (E.D. Pa. June 15, 1998);

Gallas v. Supreme Court of Pa., No. CIV.A. 96-6450, 1998

WL 22081 (E.D. Pa. Jan. 22, 1998); Gallas v. Supreme

Court of Pa., No. CIV.A. 96-6450, 1997 WL 256972 (E.D.

_________________________________________________________________

5. He did not name each of these defendants in all of the three counts.

8

Pa. May 15, 1997). We will summarize only those rulings of

the district court which are at issue on this appeal.6

On May 16, 1997, the district court entered a

memorandum and order which dismissed, on the basis of

absolute judicial immunity, Gallas' claims against Judge

Sylvester and DiPrimio arising from Judge Sylvester's order

releasing the PFA. See Gallas, 1997 WL 256972, at *11-12.

In the same memorandum and order, the district court

dismissed Gallas' procedural due process claim to the

extent that he based it on the alleged deprivation of a

liberty interest; in this regard, the court found that Gallas

failed to allege that he was stigmatized in connection with

his termination as Executive Administrator. See id. at *19.

On January 22, 1998, the district court entered an order

and memorandum granting summary judgment against

Gallas on the procedural due process claim to the extent

that he based it on the alleged deprivation of a property

interest; in this connection, the court concluded that there

was insufficient evidence to establish that Gallas was

anything other than an at-will employee. See Gallas, 1998

WL 22081, at *4-6. Then, on June 15, 1998, the district

court entered an order and memorandum holding that

Justices Zappala, Cappy, and Russell Nigro, along with

Sobolevitch, were entitled to absolute legislative immunity

with respect to Gallas' First Amendment claim arising from

his termination as Executive Administrator. See Gallas,

1998 WL 352584, at *3-10. Gallas claims that these rulings

were erroneous.

Gallas also has appealed certain discovery rulings by the

district court. On September 9, 1998, the district court

entered a memorandum and order quashing certain

subpoenas which Gallas had issued for the purpose of

conducting discovery as to the identities of the Doe

defendants designated in the complaint. J.A. at 892. Then,

on November 10, 1998, the district court entered an order

_________________________________________________________________

6. The district court dismissed Gallas' claims against several of the

defendants, including certain justices of the Supreme Court who were

sued for monetary relief only in their official capacities on Eleventh

Amendment grounds. See Gallas, 1997 WL 256972, at *5-8, *16-17.

Gallas does not challenge these dismissals.

9

and memorandum granting summary judgment against

Gallas on his interference with his employment claim; in so

ruling, the court declined to extend the discovery deadline

to permit Gallas to conduct further discovery relating to

this claim. J.A. at 1146. Gallas argues that these rulings

improperly limited his ability to collect evidence to support

his case.7

II. JURISDICTION

The district court had jurisdiction over Gallas' section

1983 claims pursuant to 28 U.S.C. 1331 and 1343 and

supplemental jurisdiction over his state law claims

pursuant to 28 U.S.C. 1367. We have jurisdiction over

this appeal pursuant to 28 U.S.C. 1291.

III. DISCUSSION

A. Judicial Immunity

The first issue on appeal is whether Judge Sylvester and

DiPrimio are entitled to absolute judicial immunity with

regard to Judge Sylvester's order releasing the PFA to the

Philadelphia Daily News. Following a motion to dismiss, the

district court held that Judge Sylvester's order, as

described in the amended complaint, constituted a judicial

act for purposes of absolute immunity. See Gallas, 1997

WL 256972, at *11-12. Our review of the district court's

order is plenary. See Children's Seashore House v.

Waldman, 197 F.3d 654, 658 (3d Cir. 1999).

The Supreme Court long has recognized that judges are

immune from suit under section 1983 for monetary

damages arising from their judicial acts. See Mireles v.

Waco, 502 U.S. 9, 9, 112 S.Ct. 286, 287 (1991); Forrester

v. White, 484 U.S. 219, 225-27, 108 S.Ct. 538, 543-44

_________________________________________________________________

7. According to Gallas' notice of appeal, "[t]he scope of this appeal

includes all rulings of the [district] court pertaining to all named and

unnamed defendants to this action as it was originally filed and later

amended." J.A. at 1. Nevertheless, based on the issues presented and

argued in Gallas' brief, we understand that he challenges only the

rulings of the district court which we have described.

10

(1988); Stump v. Sparkman, 435 U.S. 349, 355-56, 98 S.Ct.

1099, 1104 (1978). The Court has described the reasons for

recognizing this form of immunity as follows:

[T]he nature of the adjudicative function requires a

judge frequently to disappoint some of the most intense

and ungovernable desires that people can have . . . .

[T]his is the principal characteristic that adjudication

has in common with legislation and with criminal

prosecution, which are the two other areas in which

absolute immunity has most generously been provided.

If judges were personally liable for erroneous decisions,

the resulting avalanche of suits, most of them frivolous

but vexatious, would provide powerful incentives for

judges to avoid rendering decisions likely to provoke

such suits. The resulting timidity would be hard to

detect or control, and it would manifestly detract from

independent and impartial adjudication.

Forrester, 484 U.S. at 226-27, 108 S.Ct. at 544 (citations

omitted).

We must engage in a two-part inquiry to determine

whether judicial immunity is applicable. "First, a judge is

not immune from liability for nonjudicial actions, i.e.,

actions not taken in the judge's judicial capacity." Mireles,

502 U.S. at 11, 112 S.Ct. at 288. "Second, a judge is not

immune for actions, though judicial in nature, taken in the

complete absence of all jurisdiction." Id. at 12, 112 S.Ct. at

288. With respect to the first inquiry, "the factors

determining whether an act by a judge is a `judicial' one

relate to the nature of the act itself, i.e., whether it is a

function normally performed by a judge, and to the

expectations of the parties, i.e., whether they dealt with the

judge in his judicial capacity." Stump, 435 U.S. at 362, 98

S.Ct. at 1107. Our task is to "draw the line between truly

judicial acts, for which immunity is appropriate, and acts

that simply happen to have been done by judges," such as

administrative acts. Forrester, 484 U.S. at 227, 108 S.Ct. at

544.

With respect to the second inquiry, we must distinguish

between acts in the "clear absence of all jurisdiction," which

do not enjoy the protection of absolute immunity, and acts

11

that are merely in "excess of jurisdiction," which do enjoy

that protection:

A distinction must be here observed between excess of

jurisdiction and the clear absence of all jurisdiction

over the subject-matter. Where there is clearly no

jurisdiction over the subject-matter any authority

exercised is a usurped authority, and for the exercise

of such authority, when the want of jurisdiction is

known to the judge, no excuse is permissible. But

where jurisdiction over the subject-matter is invested

by law in the judge, or in the court which he holds, the

manner and extent in which the jurisdiction shall be

exercised are generally as much questions for his

determination as any other questions involved in the

case, although upon the correctness of his

determination in these particulars the validity of his

judgments may depend.

Stump, 435 U.S. at 356 n.6, 98 S.Ct. at 1104 n.6 (citation

omitted).

"A judge will not be deprived of immunity because the

action he took was in error, was done maliciously, or was

in excess of his authority; rather, he will be subject to

liability only when he has acted in the `clear absence of all

jurisdiction.' " Id. at 356-57, 98 S.Ct. at 1105 (citation

omitted); see also Forrester, 484 U.S. at 227, 108 S.Ct. at

544 (an act "does not become less judicial by virtue of an

allegation of malice or corruption of motive"); Cleavinger v.

Saxner, 474 U.S. 193, 200, 106 S.Ct. 496, 500 (1985) ("Nor

can this exemption of the judges from civil liability be

affected by the motives with which their judicial acts are

performed.") (citation omitted). Immunity will not be

forfeited because a judge has committed "grave procedural

errors," Stump, 435 U.S. at 359, 98 S.Ct. at 1106, or

because a judge has conducted a proceeding in an

"informal and ex parte" manner. Forrester , 484 U.S. at 227,

108 S.Ct. at 544. Further, immunity will not be lost merely

because the judge's action is "unfair" or controversial. See

Cleavinger, 474 U.S. at 199-200, 106 S.Ct. at 500

(immunity applies "however injurious in its consequences

[the judge's action] may have proved to the plaintiff ")

(citation omitted); Stump, 435 U.S. at 363-64, 98 S.Ct. at

12

1108 ("Disagreement with the action taken by the judge . . .

does not justify depriving that judge of his immunity. . . .

The fact that the issue before the judge is a controversial

one is all the more reason that he should be able to act

without fear of suit."). In sum, our analysis must focus on

the general nature of the challenged action, without inquiry

into such "specifics" as the judge's motive or the

correctness of his or her decision. See Mireles , 502 U.S. at

13, 112 S.Ct. at 288 ("[T]he relevant inquiry is the `nature'

and `function' of the act, not the `act itself.' In other words,

we look to the particular act's relation to a general function

normally performed by a judge . . . .") (citation omitted).

According to Gallas' complaint, Judge Sylvester ordered

the release of the PFA "for no judicial purpose and for the

sole purpose of injuring the reputation of [Gallas] . . .

without notice to [Gallas], and without a hearing designed

to consider just cause for the release of it." J.A. at 93-94.

The complaint further alleges that Judge Sylvester"was

motivated by a non-judicial intent to undermine[Gallas']

moral authority as Executive Administrator, and to assist

political opponents of [Gallas] in terminating his

employment." J.A. at 97. Gallas argues that Judge

Sylvester's order releasing the PFA was an administrative

act rather than a judicial one, "since clerks and not judges

are typically the custodians of the public record." See

Appellant's Br. at 27. Gallas further contends that Judge

Sylvester acted in the absence of all jurisdiction; in this

regard, he alleges that "[a]ll [PFAs] are impounded under

the rules of the court, maintained in confidence, and were

to be released only as evidence in a judicial proceeding, and

then only upon judicial order following a verified petition

properly noticed upon all interested parties." J.A. at 92. In

addition, Gallas argues, though without citation to any

authority, that only the judge actually assigned to his

domestic proceedings had the power to order a release of

the PFA. See Appellant's Br. at 31.

Gallas' arguments notwithstanding, we hold that Judge

Sylvester is entitled to the protection of judicial immunity.

Her order, as described in the amended complaint,

undeniably was a judicial act. Contrary to Gallas' argument

that "clerks and not judges are typically the custodians of

13

the public record," Appellant's Br. at 27, the issuance of an

order releasing a court record to the public is certainly a

"function normally performed by a judge," and the

newspaper reporter "dealt with the judge in [her] judicial

capacity" when he approached Judge Sylvester (through

DiPrimio) seeking an order releasing the PFA. See Stump,

435 U.S. at 362, 98 S.Ct. at 1107. Indeed, Gallas'

complaint states that Judge Sylvester's actions were taken

"under the color of state law and as agent of the. . . [Court

of Common Pleas]" and that Judge Sylvester"used the color

of her authority under state law" to order the release of the

PFA. See J.A. at 83, 97. These allegations recognize that

Judge Sylvester was acting in her judicial capacity. See id.

at 360, 98 S.Ct. at 1106 ("[W]e cannot characterize the

approval of the petition as a nonjudicial act. [Plaintiffs]

themselves stated in their pleadings before the District

Court that Judge Stump was `clothed with the authority of

the state' at the time that he approved the petition and that

`he was acting as a county circuit court judge.' ").

The fact that Judge Sylvester issued the order ex parte,

without notice to Gallas or an opportunity for him to be

heard, does not mean that her act was not judicial. In

Stump, the Supreme Court held that a judge was absolutely

immune with respect to his approval of a mother's ex parte

petition for an order permitting the sterilization of her

mentally challenged daughter. Id. at 355-64, 98 S.Ct. at

1104-09. The Court squarely rejected the plaintiffs'

argument that the approval of the petition was not a

judicial act because it was "not given a docket number, was

not placed on file with the clerk's office, and was approved

in an ex parte proceeding without notice to the minor,

without a hearing, and without the appointment of a

guardian ad litem." Id. at 360-63, 98 S.Ct. at 1106-08. In

the Court's view, "[b]ecause Judge Stump performed the

type of act normally performed only by judges and because

he did so in his capacity as a Circuit Court Judge, we find

no merit to [plaintiffs'] argument that the informality with

which he proceeded rendered his action nonjudicial and

deprived him of his absolute immunity." Id. at 362-63, 98

S.Ct. at 1108.8

_________________________________________________________________

8. Gallas' brief states that "[h]ad Gallas been notified of the pending

request for the release of [the PFA], and been given an opportunity to

14

Further, the allegations of the complaint do not indicate

that Judge Sylvester acted in the clear absence of all

jurisdiction. We will accept Gallas' allegation that Judge

Sylvester violated a court "rule" which allowed the release

of an impounded PFA only for purposes of its use as

evidence in a judicial proceeding, and only then upon

judicial order following a verified petition properly noticed

to all interested parties.9 Yet, such a procedural error at

most might establish that Judge Sylvester acted in excess

of her jurisdiction, not that she acted in the clear absence

of all jurisdiction. See id. at 359, 98 S.Ct. at 1106 ("A judge

is absolutely immune from liability for his judicial acts even

if his exercise of authority is flawed by the commission of

grave procedural errors."); see also Mireles , 502 U.S. at 13,

112 S.Ct. at 289 (holding that a judge merely acted in

_________________________________________________________________

respond to that request, then [Judge Sylvester's] decision may have risen

to the level of a judicial decision, and thus been subject to immunity."

Appellant's Br. at 27. Yet, the Supreme Court has made clear that an act

does not lose its judicial character merely because it is done ex parte or

is imbued with procedural error. Accordingly, if, as Gallas apparently

concedes, Judge Sylvester's order would have been a judicial act had

Gallas received notice and an opportunity to respond, then her order

nevertheless was a judicial act even in the absence of such procedural

protections.

9. The court "rule" to which Gallas' complaint apparently refers was

published as a "Court Notice[ ]" in The Legal Intelligencer. It reads as

follows:

Please take note that Family Court records, including . . .

Protection from Abuse records . . . are impounded and are not

subject to inspection except by a party to the action or counsel of

record for the party whose records are to be inspected unless

otherwise provided by statute or rule. These records may not be

removed for copying or any other purpose except by special order of

the court.

If any of these records are required as evidence in a civil,

criminal,

administrative or disciplinary proceeding, a verified petition

setting

forth the reasons why the record is needed must befiled with the

Administrative Judge of the Family Court Division or his judicial

designee. An appropriate order must accompany the petition.

J.A. at 129 (emphasis added).

15

excess of his authority in ordering police officers to use

excessive force in bringing an attorney to his courtroom for

a calendar call); Rolleston v. Eldridge, 848 F.2d 163, 164-65

(11th Cir. 1988) ("Even assuming that Judge Eldridge had

not followed procedural rules, his action would still be

within his jurisdiction.").

We recognize that Gallas contends that only the judge

who actually presided over his domestic proceedings had

the power to order a release of the PFA. But Gallas has not

pointed to any rule or other authority indicating that Judge

Sylvester did not have the authority to issue a release order.10

Moreover, even if he did point to a rule that indicated that

another judge should have entertained the application for

release of the PFA, we would not hold that Judge Sylvester

acted in the clear absence of all jurisdiction in issuing the

order.

In fact, we recently dealt with and rejected a similar

claim in Figueroa v. Blackburn, No. 99-5252, ___ F.3d ___,

2000 WL 340794 (3d Cir. Mar. 27, 2000). In Figueroa we

held that a New Jersey municipal court judge had absolute

judicial immunity for her act in holding a party in contempt

and jailing him without granting a stay as required by court

rule even though in hearing the case she acted contrary to

a Supreme Court of New Jersey directive that required her

to transfer the case to another judge. Thus, we hold that a

judge does not act in the clear absence of all jurisdiction

when the judge enters an order at least colorably within the

jurisdiction of her court even though a court rule or other

procedural constraint required another judge to act in the

matter. We also note, though our result is not dependent

on the point, that Judge Sylvester was the administrative

judge of the Family Court Division and thus it might be

_________________________________________________________________

10. The record indicates that a judge of the Family Court Division

ordered the records of Gallas' divorce and abuse proceedings sealed on

October 26, 1995--well after Judge Sylvester ordered the release of the

PFA. J.A. at 105-06. In any event, even if the record had been sealed

prior to Judge Sylvester's order, this would not mean that she acted in

the complete absence of all jurisdiction in releasing the PFA. Indeed, the

October 26, 1995 sealing order stated that requests to view the sealed

records could be approved by the motion court judge or the

administrative judge. J.A. at 106.

16

expected that she would entertain the application for the

release of the PFA in the sensitive situation in which the

FJD's Executive Administrator was a party.11

Finally, Gallas' allegations that Judge Sylvester ordered

the release of the PFA "for no judicial purpose and for the

sole purpose of injuring the reputation of [Gallas]," J.A. at

93-94, and that Judge Sylvester "was motivated by a non-

judicial intent to undermine [Gallas'] moral authority as

Executive Administrator, and to assist political opponents

of [Gallas] in terminating his employment," J.A. at 97, are

irrelevant, as judicial immunity is not forfeited by

allegations of "malice or corruption of motive." Forrester,

484 U.S. at 227, 108 S.Ct. at 544; see also Stump, 435 U.S.

at 363-64, 98 S.Ct. at 1108 (allegations that judge's action

was "unfair" and "totally devoid of judicial concern for the

interests and well-being of the young girl involved" could

not overcome judicial immunity).12

_________________________________________________________________

11. Again though our result is not dependent on it, we note that the

court "rule" regarding release of PFAs indicates that at least in some

circumstances an interested party seeking their release should apply to

the administrative judge or his judicial designee. See J.A. at 129. Judge

Sylvester was the administrative judge.

12. Gallas relies on Barrett v. Harrington , 130 F.3d 246 (6th Cir. 1997).

In that case, the court held that a judge was entitled to absolute

judicial

immunity with respect to her conduct in notifying prosecutors that she

was being harassed by a disgruntled litigant. See id. at 257-60. The

court held that judicial immunity was not applicable, however, with

respect to the judge's statements to members of the news media about

the litigant. See id. at 260-61. In the court's view, "speaking to the

media

and giving interviews about a litigant on a case over which the judge has

presided is not normally a judicial function nor is it usually in

furtherance of a judicial function," because"[u]nlike filing a complaint

with law enforcement . . . , speaking to the media .. . in no way protects

the integrity of the judicial institution or the decision-making process."

Id. at 261. Gallas seeks to draw an analogy between Judge Sylvester's

order releasing the PFA to the media and the comments to the media

made by the judge in Barrett. This analogy must fail. While a judge may

"step[ ] out of her judicial role" when she chooses to talk to the media

about a litigant appearing before her, see id. , a judge certainly does

not

step out of her judicial role when she entertains a petition for an order

releasing a court record.

17

We recognize that the complaint contains little

information regarding the precise circumstances leading to

Judge Sylvester issuing the order. We do not know, for

example, whether the order was oral or written, whether

legal argument was presented to Judge Sylvester prior to

the issuance of the order, or whether legal counsel for the

newspaper participated to any extent. We will assume that

Judge Sylvester issued the order orally, with no

presentation of a written petition or legal argument by the

newspaper and no involvement by the newspaper's counsel.

Nevertheless, even under these circumstances, Judge

Sylvester's order was a judicial act not undertaken in the

complete absence of jurisdiction.13

Our conclusion that Judge Sylvester is entitled to

absolute judicial immunity in turn demands that DiPrimio

be accorded absolute "quasi-judicial" immunity. As

mentioned, according to the complaint, the Philadelphia

Daily News obtained the release order from Judge Sylvester

by means of its reporter's request to DiPrimio. J.A. at 92-

93. In the circumstances, we have no trouble concluding

that he should be absolutely immune for simply acting as

an intermediary between the newspaper and the judge. See

Forrester, 484 U.S. at 225, 108 S.Ct. at 543 (indicating that

the protections of judicial immunity extend to officials "who

perform quasi-judicial functions"); Moore v. Brewster, 96

F.3d 1240, 1244 (9th Cir. 1996) ("[Defendant], while acting

as Clerk of the United States District Court . . . in many of

his actions performed quasi-judicial functions. . . . Even if

. . . [defendant] deceived [plaintiff] regarding the status of

the [supersedeas] bond and improperly conducted hearings

to assess costs, all in coordination with Judge Brewster,

such acts would fall within [defendant's] quasi-judicial

duties and are thus protected by absolute immunity.");

McArdle v. Tronetti, 961 F.2d 1083, 1085 (3d Cir. 1992)

(holding that a prison physician who prepared an

_________________________________________________________________

13. We note that the cases seem to refer interchangeably to a judge

acting in the "complete" or "clear" absence of all jurisdiction. But

plainly

a judge does not lose immunity merely because it is later determined

that in fact he or she did not have jurisdiction and in that sense the

absence of jurisdiction was "complete." See Stump v. Sparkman, 435 U.S.

at 356-57, 98 S.Ct. at 1104-05.

18

evaluation of an inmate pursuant to a judge's request was

"functioning as an arm of the court" and "[a]s such, he was

an integral part of the judicial process and is protected by

the same absolute judicial immunity that protects Judge

Connelly"); Dellenbach v. Letsinger, 889 F.2d 755, 763 (7th

Cir. 1989) ("[W]e conclude on the facts before us that the

court personnel are entitled to absolute quasi-judicial

immunity for their alleged acts . . . pursuant to the judge's

instructions.").

In sum, the district court did not err in dismissing

Gallas' claims against Judge Sylvester and DiPrimio with

respect to Judge Sylvester's order releasing the PFA.

B. Legislative Immunity

The next issue we address is whether Justices Zappala,

Cappy, and Nigro, as well as Sobolevitch, are entitled to

absolute legislative immunity with regard to Gallas' claims

arising from his termination as Executive Administrator.

The district court granted summary judgment with respect

to Gallas' First Amendment claim on the ground that the

Pennsylvania Supreme Court's March 26 order reorganizing

the FJD constituted a legislative act to which absolute

immunity should attach. See Gallas, 1998 WL 352584, at

*3-10. Our standard of review is plenary. See Doby v.

DeCrescenzo, 171 F.3d 858, 867 (3d Cir. 1999).

Legislators enjoy absolute immunity from liability for

their legislative acts. See Bogan v. Scott-Harris, 523 U.S.

44, 46, 118 S.Ct. 966, 969 (1998); Supreme Court of Va. v.

Consumers Union of the United States, Inc., 446 U.S. 719,

732, 100 S.Ct. 1967, 1974 (1980); Larsen v. Senate of Pa.,

152 F.3d 240, 249 (3d Cir. 1998), cert. denied , 525 U.S.

1145, 119 S.Ct. 1041 (1999). In determining whether an

official is entitled to legislative immunity, we must focus on

the nature of the official's action rather than the official's

motives or the title of his or her office. See Bogan, 523 U.S.

at 54, 118 S.Ct. at 973 ("Whether an act is legislative turns

on the nature of the act, rather than on the motive or

intent of the official performing it."); Forrester, 484 U.S. at

224, 108 S.Ct. at 542 ("Running through our cases. . . is

a `functional' approach to immunity questions . .. . Under

that approach, we examine the nature of the functions with

19

which a particular official or class of officials has been

lawfully entrusted, and we seek to evaluate the effect that

exposure to particular forms of liability would likely have on

the appropriate exercise of those functions."); Larsen, 152

F.3d at 253 ("Legislative immunity must be applied

pragmatically, and not by labels.").

In accordance with this functional approach, the

Supreme Court has recognized that judges sometimes

perform legislative actions. See Forrester, 484 U.S. at 227,

108 S.Ct. at 544 (noting a distinction "between judicial acts

and the administrative, legislative, or executive functions

that judges may on occasion be assigned by law to

perform") (emphasis added). Thus, in Consumers Union the

Supreme Court afforded legislative immunity to the Virginia

Supreme Court and its chief justice in connection with the

promulgation of the state bar code. See Consumers Union,

446 U.S. at 731-34, 100 S.Ct. at 1974-76 ("[T]he Virginia

Court is exercising the State's entire legislative power with

respect to regulating the Bar, and its members are the

State's legislators for the purpose of issuing the Bar

Code."). Similarly, we have indicated that non-legislators

performing legislative functions may claim legislative

immunity. See Aitchison v. Raffiani, 708 F.2d 96, 99-100

(3d Cir. 1983) (holding that a mayor and a borough

attorney were entitled to legislative immunity with respect

to their involvement in the passage of an ordinance

eliminating the plaintiff 's job position; stating that "we look

to the function the individual performs rather than his

location within a particular branch of government"); see

also Bogan, 523 U.S. at 55, 118 S.Ct. at 973 ("We have

recognized that officials outside the legislative branch are

entitled to legislative immunity when they perform

legislative functions . . . .") (citing Consumers Union).

Accordingly, the question here is whether the justices of

the Pennsylvania Supreme Court performed a legislative

function when they issued the March 26 order reorganizing

the FJD. We have employed a two-part test to determine

whether an act is legislative:

First, the act must be `substantively' legislative, i.e.,

legislative in character. Legislative acts are those which

involve policy-making decision [sic] of a general scope

20

or, to put it another way, legislation involves line-

drawing. Where the decision affects a small number or

a single individual, the legislative power is not

implicated, and the act takes on the nature of

administration.14 In addition, the act must be

`procedurally' legislative, that is, passed by means of

established legislative procedures. This principle

requires that constitutionally accepted procedures of

enacting the legislation must be followed in order to

assure that the act is a legitimate, reasoned decision

representing the will of the people which the governing

body has been chosen to serve.

Ryan v. Burlington County, 889 F.2d 1286, 1290-91 (3d Cir.

1989).

It is clear that the issuance of the March 26 order was a

"substantively" legislative act. The Pennsylvania Supreme

Court issued this order (as well as its prior orders relating

to the reformation of the FJD) pursuant to a direct grant of

rulemaking authority from the state constitution. Under the

Pennsylvania Constitution, the Supreme Court "shall

exercise general supervisory and administrative authority

over all the courts," Pa. Const. art. V, 10(a), and it "shall

appoint a court administrator and may appoint such

subordinate administrators and staff as may be necessary

and proper for the prompt and proper disposition of the

business of all courts." Pa. Const. art. V, 10(b). Most

significantly, the Supreme Court "shall have the power to

prescribe general rules governing practice, procedure and

the conduct of all courts . . . including . . . the

administration of all courts and supervision of all officers of

the judicial branch." Pa. Const. art. V, 10(c). See Callahan

v. City of Philadelphia, No. 99-1816, ___ F.3d ___, 2000 WL

311128, at *4-6 (3d Cir. Mar. 28, 2000). In essence, then,

the Supreme Court performed the same type of function in

issuing the March 26 order as the Pennsylvania General

Assembly performs when it exercises its constitutionally

granted power to pass legislative enactments. See Pa.

_________________________________________________________________

14. Of course, in Ryan we did not mean to imply that a legislative body,

passing a de jure law affecting only a single person, would not be

entitled to legislative immunity.

21

Const. art. II, 1 ("The legislative power of this

Commonwealth shall be vested in a General Assembly. . . .").15

Further, the March 26 order involved a "policy-making

decision of a general scope," rather than a decision

"affect[ing] a small number or a single individual." See

Ryan, 889 F.2d at 1291. Beyond eliminating Gallas'

position, the order provided for a broad reorganization of

the supervisory structure of the FJD. The order created an

Administrative Governing Board to be comprised of local

judges along with the Administrator of the Pennsylvania

Courts. The Board was given specific duties and powers,

including the selection of a Court Administrator and Budget

Administrator and a responsibility to "monitor the overall

performance of all courts and departments of the District in

an attempt to achieve the very best court system possible."

J.A. at 309-10. The order further identified the duties of the

Court Administrator and the Budget Administrator and

provided for the assignment of their staffs. J.A. at 310-11.

In sum, the March 26 order represented a general overhaul

of the FJD's administrative structure pursuant to the

Supreme Court's constitutionally granted power to

promulgate rules governing the operation of Pennsylvania

courts. We must conclude, then, that the issuance of the

order was a "substantively" legislative act. See Consumers

Union, 446 U.S. at 731-34, 100 S.Ct. at 1974-76 (granting

legislative immunity to state supreme court and its chief

justice with respect to the exercise of the court's inherent

power to issue the state's bar code).16

_________________________________________________________________

15. Gallas argues that the quoted provisions of the Pennsylvania

Constitution grant the Supreme Court the power to act "administratively"

rather than "legislatively." See Appellant's Br. at 36, 41; see also

Callahan, 2000 WL 311128, at *6. It is true that Article V, Section 10

employs the term "administration." Yet, as we have indicated,

"[l]egislative immunity must be applied pragmatically, and not by labels."

Larsen, 152 F.3d at 253. It is clear that the Pennsylvania Constitution's

broad grant of authority empowers the Supreme Court to make not only

"administrative" decisions but also discretionary, policymaking decisions

of a "legislative" nature with respect to the Pennsylvania courts.

16. Gallas argues that the March 26 order was"administrative activity

. . . not unlike one finds at the top of any number of large

bureaucratically organized institutions, who manage through the

22

The Supreme Court recently recognized that the

elimination of a public employment position -- as opposed

to the firing of a single individual -- constitutes a

"legislative" act. In Bogan, the plaintiff filed a section 1983

action against various local officials, including the mayor

and a member of the city council, alleging that an

ordinance eliminating her position was motivated by racial

animus and retaliation for her exercise of First Amendment

_________________________________________________________________

clarification of policies and through the organization and reorganization

of agencies." Appellant's Br. at 40. Perhaps Gallas is suggesting that

extending legislative immunity to the justices of the Pennsylvania

Supreme Court in this case will open the door to applying such

immunity to other persons who undertake to reorganize the structure of

public agencies or departments. We, however, in adjudicating this matter

express no opinion on the precise reach of legislative immunity in other

contexts. What we do say is that such immunity applies where the

highest court of a state exercises its direct constitutional authority to

promulgate rules and orders governing the "practice, procedure and . . .

conduct" of state courts. See Pa. Const. art. V, 10(c). There can be no

doubt that legislative immunity would apply if the Pennsylvania General

Assembly were to pass a statute providing for the same form of

reorganization which was created by the Supreme Court's March 26

order. See Consumers Union, 446 U.S. at 733-34, 100 S.Ct. at 1975

("[T]here is little doubt that if the Virginia Legislature had enacted the

State Bar Code and if suit had been brought against the legislature, its

committees, or members . . . the defendants in that suit could

successfully have sought dismissal on the grounds of absolute legislative

immunity.").

In Consumers Union, it was argued that legislative immunity should

not extend to the Virginia Supreme Court in connection with its

promulgation of the state bar code because "many executive and agency

officials wield authority to make rules in a wide variety of

circumstances." See id. at 734, 100 S.Ct. at 1975. The Supreme Court

rejected this argument, stating that "in this case the Virginia [Supreme]

Court claims inherent power to regulate the Bar, and. . . [it] is

exercising the State's entire legislative power with respect to regulating

the Bar, and its members are the State's legislators for the purpose of

issuing the Bar Code." Id. at 734, 100 S.Ct. at 1975-76. Like the Virginia

Supreme Court, the Pennsylvania Supreme Court here exercised

"inherent power" to regulate the lower courts and "its members are the

State's legislators for the purpose of " regulating those courts.

Accordingly, legislative immunity is appropriate.

23

rights. See Bogan, 523 U.S. at 47, 118 S.Ct. at 969. The

Supreme Court held that the defendants' actions were both

substantively and procedurally legislative:

This leaves us with the question whether, stripped of

all considerations of intent and motive, [defendants']

actions were legislative. We have little trouble

concluding that they were. Most evidently, [the city

council member's] acts of voting for an ordinance were,

in form, quintessentially legislative. [The mayor's]

introduction of a budget and signing into law an

ordinance also were formally legislative, even though

he was an executive official . . . .

[Plaintiff], however, asks us to look beyond

[defendants'] formal actions to consider whether the

ordinance was legislative in substance. We need not

determine whether the formally legislative character of

[defendants'] actions is alone sufficient to entitle

[defendants] to legislative immunity, because here the

ordinance, in substance, bore all the hallmarks of

traditional legislation. The ordinance reflected a

discretionary, policymaking decision implicating the

budgetary priorities of the city and the services the city

provides to its constituents. Moreover, it involved the

termination of a position, which, unlike the hiring or

firing of a particular employee, may have prospective

implications that reach well beyond the particular

occupant of the office. And the city council, in

eliminating [plaintiff 's position], certainly governed in a

field where legislators traditionally have power to act.

Thus, [defendants'] activities were undoubtedly

legislative.

Id. at 55-56, 118 S.Ct. at 973 (citation and internal

quotation marks omitted).17 In light of Bogan, the

Pennsylvania Supreme Court's "discretionary, policymaking

_________________________________________________________________

17. By comparison, in Forrester, 484 U.S. at 229-30, 108 S.Ct. at 545-

46, the Court held that the demotion and discharge of a single employee

was an administrative act, and hence not within the scope of judicial

immunity.

24

decision" to eliminate the position of Executive

Administrator should be classified as a legislative act.18

Turning to the second prong of the Ryan test, the

undisputed evidence indicates that the March 26 order was

"procedurally" legislative. The record includes an affidavit

from Justice Cappy describing the process by which the

Pennsylvania Supreme Court exercises its constitutional

authority to oversee the lower courts:

The Supreme Court exercises this constitutional

authority by following certain established procedures:

proposals are circulated among the Justices; the

Justices engage in deliberation regarding the

proposals; after deliberation, the Justices vote; and, in

the event a proposal is adopted, the Court issues an

appropriate order.

. . . .

[With respect to the March 26 order,] the Justices of

the Court deliberated on the merits of various

alternatives to the Court's continued oversight of the

FJD. Following these deliberations, the Justices voted

to reorganize the administration of the FJD and

implement the Court's policy decision to return control

to the FJD judges and officials. Pursuant to its

deliberations and vote, on March 26, 1996, the

Supreme Court issued an order reorganizing the FJD

. . . .

J.A. at 412, 418. Thus, as the evidence demonstrates, the

Supreme Court determined in its discretion that the time

had come to return the FJD to local control; the Justices

then debated alternatives, voted, and issued a directive

_________________________________________________________________

18. Affidavits from Justices Cappy, Zappala, and Nigro indicate that the

March 26 order resulted from an exercise of the Supreme Court's

discretionary judgment that sufficient progress had been made in the

reformation of the FJD as to justify a return to local control. J.A. at

412,

425, 427. Of course, the justices are entitled to legislative immunity

regardless of their motive in making the March 26 order.

25

reorganizing the FJD. This procedure was no different from

that which a legislature would follow in like circumstances.19

In sum, the issuance of the March 26 order was both

substantively and procedurally legislative, and accordingly

the district court did not err in applying legislative

immunity to Justices Zappala, Cappy, and Nigro with

respect to claims arising from Gallas' termination as

Executive Administrator. Having reached this conclusion,

we must afford quasi-legislative immunity to Sobolevitch,

whose role in the reorganization derived from the Supreme

Court's order.20 See Aitchison, 708 F.2d at 99-100 (holding

that borough attorney who "was acting in direct assistance

of legislative activity" was entitled to absolute immunity).

Indeed, Gallas' counsel conceded before the district court

that Sobolevitch should receive immunity if the members of

the Supreme Court are declared immune. J.A. at 667-68.

See Gallas, 1998 WL 352584, at *9.

C. Discovery Issues

Gallas raises two challenges to the district court's

management of discovery. First, Gallas challenges the

district court's September 9, 1998 order quashing certain

deposition subpoenas which he issued on or about March

27, 1998. Gallas sought these depositions in part for the

purpose of obtaining the identities of the Doe defendants

designated in his complaint. The district court precluded

Gallas from conducting depositions for this purpose

_________________________________________________________________

19. We are not suggesting that our result would have been different if the

Supreme Court had adopted the March 26 order with fewer procedural

steps.

20. Although the district court addressed legislative immunity only with

respect to the First Amendment claim in Count IV, such immunity also

bars Gallas' procedural due process claim as against these four

defendants. Thus, we need not determine whether the district court

erred in dismissing the due process claim for failure to show the

deprivation of a liberty or property interest.

Aside from Zappala, Cappy, Nigro, and Sobolevitch, Gallas asserted the

First Amendment and due process claims in Count IV against several

other defendants. The district court dismissed these claims against these

other defendants on grounds which Gallas does not challenge here. See

Gallas, 1997 WL 256972, at *6-22.

26

because it concluded that, even if Gallas identified the Doe

defendants, it simply was too late for their service in

accordance with Fed. R. Civ. P. 4(m) and it likewise was too

late for Gallas to amend his complaint to assert timely

claims against them. In this connection, the district court

held that any amendment of the complaint to name the Doe

defendants would not relate back to the date of the original

complaint under Fed. R. Civ. P. 15(c)(3). J.A. at 897.

On this appeal, Gallas argues that he should have been

permitted to conduct depositions for the purpose of

identifying the Doe defendants who released his PFA and

divorce file. He argues that the district court erred with

respect to Rule 4(m), but he presents no argument

regarding timeliness or relation-back. Gallas' section 1983

claims relating to the releases of the PFA and divorce file

are subject to Pennsylvania's two-year limitations period for

personal injury claims. See Sameric Corp. of Delaware, Inc.

v. City of Philadelphia, 142 F.3d 582, 599 (3d Cir. 1998).

The alleged releases took place in September 1995 and

again on or before March 23, 1996. Accordingly, in the

absence of relation-back, any amendment of the complaint

after March 23, 1998, to name the Doe defendants with

respect to the last of the releases would be time-barred.

Yet, Gallas makes no attempt to point out anything in the

record indicating that the strict requirements for relation-

back under Rule 15(c)(3) have been met. See Nelson v.

County of Allegheny, 60 F.3d 1010, 1014 n.6 (3d Cir. 1995)

(replacing a John Doe with a party's real name amounts to

"changing a party" under Rule 15(c)(3)). Accordingly, we will

not disturb the district court's decision to quash the

subpoenas.

Second, Gallas contends that the district court erred in

refusing to grant him additional time to conduct discovery

with respect to his interference with employment claim. On

November 10, 1998, more than two years after Gallas

commenced this action and more than six months after the

discovery deadline passed, the district court entered an

order granting summary judgment in favor of Fumo, Brady,

and the Democratic City Committee on the ground that

Gallas had failed to come forward with any evidence that

these defendants attempted to influence the members of

27

21. We do not imply that Fumo, Brady, and the Democratic City

Committee could be liable for attempting to influence the Pennsylvania

Supreme Court with respect to the administrative structure in the FJD.

After all, imposition of liability for such conduct would have First

Amendment implications of its own. Moreover, it is not immediately

evident why persons interested in public affairs should be liable for

trying to influence a body exercising legislative functions to act in a

particular way. In view of our disposition of the case we, however, have

no need to consider this substantive point.

the Pennsylvania Supreme Court to terminate him. 21 In so

ruling, the district court declined to extend the discovery

deadline any further. J.A. at 1146.

Our standard of review with regard to the district court's

management of discovery is abuse of discretion. See

Massachusetts Sch. of Law at Andover, Inc. v. American Bar

Ass'n, 107 F.3d 1026, 1032 (3d Cir. 1997). "[W]e will not

upset a district court's conduct of discovery procedures

absent a demonstration that the court's action made it

impossible to obtain crucial evidence, and implicit in such

a showing is proof that more diligent discovery was

impossible." In re Fine Paper Antitrust Litig., 685 F.2d 810,

818 (3d Cir. 1982) (internal quotation marks omitted)

(emphasis in original). The record indicates that Gallas had

sufficient time to conduct discovery during the 25 months

between the filing of his complaint and the entry of

summary judgment on the interference with employment

claim, despite the fact that relatively brief stays of discovery

occupied some of that time. Accordingly, we find no abuse

of discretion. See Massachusetts Sch. of Law, 107 F.3d at

1034 ("[T]he district court, by allowing fairly extensive

discovery and then closing discovery and entertaining the

summary judgment motion, did not abuse its discretion.").

IV. CONCLUSION

For the foregoing reasons, the orders of the district court

challenged by Gallas on this appeal will be affirmed.

28

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

29