Opposition Brief — Dodson v. University of Arkansas for Medical Sciences

; j Sipe Coot, US,

a ) FILEG

Vo NOV 29 2010

No. 10-308

OFFICE OF THE CLeny

3n The

Supreme Court of the Anited States

PATRICIA DODSON,

Petitioner,

UNIVERSITY OF ARKANSAS FOR MEDICAL

SCIENCES, By and Through the University of Arkansas

System, Board of Trustees, et al.,

Respondents

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

— —- ---—_— @ -- -

BRIEF IN OPPOSITION

ELIZABETH THOMAS SMITH

Attorney for University

Respondents

UNIVERSITY OF ARKANSAS

2404 North University Avenue

Little Rock, AR 72207-3608

(501) 686-7608

esmith@uams.edu

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Jurisdictional Statement

Constitutional And Statutory Provision:

Involved ............

Statement Of The Case

Statement Of The Facts

A. Status Of Embryos

§. Reliance On Control And Disposition

Agreement ....

Rights In Embryos Never Belonged

To Dodson ....

Upon Dissolution Of The Dodson-Lay

Marriage, UAMS Continually Asserted

Control And Direction Over The Eva

a ee

Argument.

A. Dodson Has No Constitutional Right

To The Embryos

B. There Is No Case Or Controversy

Permitting Review.....

This Case Does Not Present An Im

portant Unsettled Question Or Con

flict Of Law..........

VI. Conclusion.

APPENDIX

Transcript on Motion to Dismis

District Court Order

TABLE OF AUTHORITIES

CASES

Ace Constr. v. City of St. Louis, 263 F.3d 831

(8th Cir. 2001) .....

Aetna Life Ins. Co. v. Haworth, 300 U.S. 227

GE Pac skcnstsnseessctucccanautes

Alvarez v. Smith, 558 U.S

(2009)

Ballinger v. Culotta, 322 F.3d

2003)

Brown v. Felsen, 442 U.S. 127 (1979).

Burrell v. Virginia, 395 F.3d 508 (2005)

Carlson v. Hyundai Motor Co., 222 F.3d 1044

(8th Cir. 2000)

DeFunis v. Odegaard, 416 U.S. 312 (1974) (per

curlam)

District of Columbia Court of Appeals v. Feld

man, 460 U.S. 462 (1983) ............. mien | f

Dodson v. Univ. of Ark. for Medical Sciences,

601 F.3d 750 (8th Cir. 2010) ........0.. passim

Exxon Mobil v. Saudi Basic Indus. Corp., 544

U.S. 280 (200B)............00.000s.

Friends of Lake View Sch. Dist. No. 25 v. Beebe,

578 F.3d 753 (8th Cir. 2009)

General Oil v. Crain, 209 U.S. 211 (1908).....

Glic v. Ballentine, 397 F.2d 590 (8th Cir. 1968)

TABLE OF AUTHORITIES ~— Continued

Goetzman v. Agribank, FCB (In re Goetzman),

91 F.3d 1173 (8th Cir. 1996).

Johnson v. Bechtel Assoc. Prof. Corp., 801 F.2d

412 (D.C. Cir. 1986).............

Lance v. Dennis, 546 U.S. 459 (2006) .

Lemonds v. St. Louis County, 222 F.3d 488 (8th

Cir. 2000), cert. denied, 531 U.S. 1183 (2001) ...16,

Lewis v. Continental Bank Corp., 494 U.S. 472

(1990)

Mills v. Green, 159 U.S. 651 (1895)......

North Carolina v. Rice, 404 U.S. 244 (1971)

(per curiam)..

Pennzoil Co. v. Texaco Inc., 481 U.S. 1 (1987)

Powell v. Lane, 289 S.W.3d 440 (Ark. 2008)

Prince v. Arkansas Bd. of Examiners, 380 F:.

337 (8th Cir. 2004)

Riehm v. Engelking, 538 F.3d

Rooker v. Fidelity Trust Co., 263

(1923) ae passim

Testa v. Katt, 330 U.S. 386 (1947). 1]

U.S. v. Eisner. 323 F.3d 38 (6th Cir. 1963).. 3

Wood v. Orange County, 715 F.2d 1543 (11th

Cir. 198: eens , 1]

TABLE OF AUTHORITIES ~ Continued

STATUTES

28 U.S.C. §

28 U.S.C. § 2101(f)

§

42 U.S.C

1602, et seq

1983

OTHER SOURCES

U.S. Const. Art. III, § 2

U.S. Const. amend. V

Sup. Ct. R. 10.

Sup. Ct. R. 14(1)(e)(iv)

Sup. Ct. R. 15

Fed. R. App. P. 431(d)(2)

Jurisdictional Statement

This Court would have jurisdiction if there wer

an issue of unsettled law involving a case or contro

versy. However, neither is present in the case which

is offered on Petition for Writ of Certiorari. Sup. Ct

R. 10

Il. Constitutional And Statutory Provisions

Involved

42 U.S.C. § 1983 protects citizens of the United

States or other persons within the jurisdiction thereof

from the deprivation of any rights, privileges, o1

immunities secured by the Constitution and laws but

does not create a fundamental right in Dodson to

determine the di: position of the embrvo

Ill. Statement Of The Case

Dodson and her former husband. Jackson O. Lay

agreed that control and direction of embryos created

from their tissue would be relinquished if their mar

riage was dissolved. Dodson and Lay’s marriag

dissolved. Dodson has attempted to obtain control

and direction over the embryos by filing suits in State

and Federal courts. Dodson’s complaints have been

dismissed, and upheld on appeal. The embryos have

since been destroyed. Dodson now requests this Court

to grant Certiorari regarding her desire to obtain

control of the embryos. There is no case or controversy

permitting review by this Court

IV. Statement Of Fact

The University of Arkar for Medical Science

(“UAMS”) will provide clarification regarding the

tatus of the embryos and will addre three m)

statements of fact presented in Dodson’s Petition for

Writ of Certiorari. Misstatements of fact that bear on

what issues properly would be before the court if

Certiorari were granted are to be addressed by Re

pondent Sup Ct. R. 15

A. Status Of Embryos

It is true that at the district court lev

agreed to maintain the status quo of the embryo

pending resolution of this case lhe Current

Medical Director at the University of Arkansas for

Medical Sciences is directed to continue to maintain

the frozen embryos at their current location and in

their current condition and state pending the final

resolution of thi htigation District Court Order

App. 4

his case was finally resolved on June 9, 2010, b

issuance of the mandate by the Eighth Circuit

‘Issuance of the mandate formally marks the end of

appellate jurisdiction. Jurisdiction returns to the

tribunal to which the mandate is directed for such

proceedings as may be appropriat« ” Carlson

Hyundai Motor Co., 22: 3d 1044, 1045 (8th Cir

2000) citing Johnson v. Bechtel Assoc. Prof. Corp., 801

2d 412, 415 (D.C. Cir. 1986). The mandate signaled

conclusion of the proceeding

UAMS maintained babtu quo until the hina

resolution of this case A party may move to stay the

mandate pe nding the filing of a petition for writ ol

certiorar!

n the pupreme Court. Kules of Appellate

Procedure Rule Wild \2 Tif the mwurieved

}

party fails to obtain an order granting his appheation

Hor tay! he hall answer for all damage ma

cost which the othe party may istain by re“uson

the stav. 2R USC. 8 VIO

Petition for Writ of Certiorari does not operat

i Lay of judgment ihe filing of a petition for

certiorarl dot nol automatically Lay proceeding if

the District Court which a mandate affirminy the

judgment has issued, Gli Ballentine, 397 2d 590

694 (8th Cir. 1968); U.S isner ns bd

Oth Cir. 1963 Without the vrantiny of a stay of our

mandate aflirming the lower court dism: il there

obviou iy wii no impediment | i hye | { }

the lower « int dismi - ha

iat iiise i] Crise f | i i

lune 9, 2010, control and determination of the dispo

ition of the embryos tn question re ted with UAM

at that time. No re quest for stay was made to Judy

Moody; no petition for stay of the mandate was fil

with the United Stat supreme Court 10 Bf

issued by Judge Moody or the United Stat upremeé

Court. UAMS exercised its control and has d

of the embryos. This case now moot, and the re

Dodson reaue CANNOL De mance i

B. Reliance On Control And Disposition

Agreement

Dodson asserts that UAMS relies solely on the

control and disposition of embryos agreement as its

basis for dismissal of this petition. While UAMS does

rely on the agreement signed by Dodson and Lay

upon creation of the embryos as one basis for denial

of Dodson’s wishes, it is not the only basis. UAMS

also relies upon the divorce decree issued in Hot

Spring County, Arkansas which did not grant Dodson

the right to control the embryos. Further, UAMS

relies upon the Order by the Pulaski County Circuit

Court of Arkansas dismissing Dodson’s Complaint for

Declaratory Judgment, Permanent Injunction and

Temporary Injunction against UAMS, its Medical

Director, and Chancellor. UAMS also relies upon the

District Court’s Order dismissing Dodson’s complaint

alleging violation of 42 U.S.C. § 1983 for deprivation

of life, liberty and property without due process, and

Breach of Implied Contract requesting injunction and

specific performance — requiring UAMS to discontin-

ue interfering with |Dodson’s] wishes regarding the

disposition of her embryos. Finally, UAMS relies upon

the Eighth Circuit opinion, and the denial of Dodson’s

request for en banc rehearing, and mandate uphold-

ing the dismissal of Dodson’s complaint by the East-

ern District of Arkansas.

C. Rights In Embryos Never Belonged To

Dodson

Dodson alleges: “As part of the property settle-

ment agreement between Dodson and Lay, any and

all rights, if any, that Lay had in the frozen embryos

belonged to Dodson.” Petition for Writ of Certiorari

pg. 3 (emphasis added). This statement is factually

inaccurate, as the rights to the frozen embryos in

question never “belonged” to Dodson. The order filed

in the Chancery Court of Hot Spring County, Arkan-

sas between Jackson O. Lay Jr., Plaintiff, and Patri-

cia Dodson, Defendant, states:

* y .

2. The decree, the Property Settlement

Agreement and the Control and Disposition

of Embryos Statement are not inconsistent.

3. Under the terms of the Control and Dis-

position of Embryos Statement, upon dissolu-

tion of the marriage by court order, all

control and disposition of the tissues as of

January 29, 1997, was relinquished to the

Medical Director of the University Hospital

in Vitro Fertilization Program.

4. This court was not called upon to inter-

pret the third party contract.

5. Under the terms of the Property Settle-

ment Agreement the plaintiff has relin-

quished his right to either consent or object to

available options, if any, for disposition of the

embryos as listed in the Control and Disposi-

tion of Embryos Statement. (emphasis added).

Pet. App. 66.

The Property Settlement Agreement did not give

Dodson control of or rights to the embryos.

Dodson’s divorce excluded the “available options”

referenced by the Hot Spring County Court. The

Control and Disposition Agreement executed by

Dodson and Lay set forth that control and direction

for disposition of the tissues (embryos) “rests with the

couple” and provided three options referenced by the

divorce court. However, the Control and Disposition

Agreement also stated: “I, Patricia Lay, and I, Jack-

son O. Lay agree that all control and direction of our

tissues will be relinquished to the Medical Director

. under the following circumstances: dissolution of

our marriage by Court Order....” Pet. App. 70-71.

This Agreement was signed by both Dodson and Lay.

‘

Thus, the statement that the “rights . . . in the frozen

embryos belonged to Dodson” is simply not true.

D. Upon Dissolution Of The Dodson-Lay

Marriage, UAMS Continually Asserted

Control And Direction Over The Embryos

Dodson’s statement: “She therefore paid the fees

to UAMS for the embryos it now claims ownership

of” is misleading (emphasis added). In 2000, Dodson

sued UAMS for the ability to control the disposition of

the embryos and Dodson’s case was dismissed with

prejudice. UAMS retained the embryos in storage and

mistakenly billed Dodson for such storage for a

number of years. UAMS never relinquished control or

ability to determine the disposition of the embryos. In

fact, when the billing mistake was discovered; UAMS

returned the monies paid by Dodson for storage

which was mistakenly billed — no right was created

by this mistake; certainly not a constitutional right.

Stating that UAMS now claims ownership of the

embryos indicates that UAMS did not claim owner-

ship or control of the embryos before. It is clear by the

many years of denial of Dodson’s requests to control

these embryos, that UAMS has always maintained

the pesition that control in the embryos rested with

UAMS upon dissolution of the marriage between

Dodson and Lay.

V. Argument

A Petition for Writ of Certiorari is granted only

for compelling reasons, including when “a state court

or a United States court of appeals has decided an

important question of federal law that has not been,

but should be, settled by this Court, or has decided an

important federal question in a way that conflicts

with relevant decisions of this Court.” Sup. Ct. R. 10.

The matter presented to this Court on Petition for

Writ of Certiorari is not a compelling reason to sup-

port Certiorari.

A. Dodson Has No Constitutional Right To

The Embryos

Dodson cites 42 U.S.C. § 1983 protection from

deprivation of rights or privileges as the “relevant

provision involved.” While § 1983 protection is im-

portant and essential, it protects citizens of the

United States from the deprivation of any rights,

privileges, or immunities secured by the Constitution

and laws. It does not create a fundamental right in

Dodson to decide/determine the disposition of the

embryos in question. Dodson has not cited any case

that supports her position of having a fundamental,

constitutiona! right to solely decide the disposition of

the embryos and, in effect, force Lay to become a

father. Her simplistic theories presented to the lower

courts that Lay “waived” any objections to parenthood

by participating in creation of the embryos, or that

“issues of financial obligations can be decided later” is

unsupported. Section 1983 does not confer on this

Court jurisdiction to review on a Writ of Certiorari

the judgment or order in question as required by

United States Supreme Court Rule 14(1)(e)(iv).

Further, simply restating her state court claim

for Declaratory Judgment and Injunction against

UAMS, it’s Medical Director, and Chancellor as a

§ 1983 claim in federal district court does not provide

her with federal court jurisdiction. “If a litigant has

raised and lost claims in state court, he may not

recast those claims under § 1983 and try again. He

must follow the appellate procedure through the

State courts and seek review before the Supreme

Court. See Rooker v. Fidelity Trust Co., 263 U.S. 4138,

415-16 (1923).” Prince v. Arkansas Bd. of Examiners,

380 F.3d 337, 340 (8th Cir. 2004).

B. There Is No Case Or Controversy Per-

mitting Review

“The Constitution permits this Court to decide

legal questions only in the context of actual ‘Cases’ or

‘Controversies, Art. III, § 2, and an actual controversy

must exist at all stages of review, not just when the

complaint is filed.” In this case, there is no longer any

actual controversy between the parties about owner-

ship or possession of the underlying property.” Alva-

rez v. Smith, 558 U.S. __, 180 S.Ct. 576, 580 (2009).

The doctrine of mootness applies when there is

no longer any actual controversy regarding ownership

or possession of the underlying property, there is no

claim for damages, and the case does not fit within

the category of cases that are “capable of repetition”

while “evading review.” An abstract dispute solely

about the meaning of a law falls outside the scope of

the constitutional words “Cases” and “Controversies.”

Id. See, e.g., Lewis v. Continental Bank Corp., 494

U.S. 472, 477 (1990); North Carolina v. Rice, 404 U.S.

244, 246 (1971) (per curiam); Aetna Life Ins. Co. v.

Haworth, 300 U.S. 227, 241 (1937); Mills v. Green,

159 U.S. 651, 653 (1895). “[T]he capable-of-repetition

doctrine applies only in exceptional situations, and

generally only where the named plaintiff can make a

reasonable showing that he will again be subjected to

the alleged illegality.” DeFunis v. Odegaard, 416 U.S.

312, 318-319 (1974) (per curiam).

10

Here, UAMS appropriately carried out the

Eighth Circuit’s mandate and has destroyed the

embryos. There is no longer a case or controversy to

be decided, nor is the case capable of repetition. Thus,

Certiorari should not be granted.

C. This Case Does Not Present An Inm-

portant Unsettled Question Or Conflict

Of Law

1. Dodson argues Certiorari should ve granted

because there is an “unanswered question” of what

“the inextricably intertwined analysis” of Rooker-

Feldman entails. Dodson states “the complexity of

inextricably intertwined analysis is an issue that has

given numerous courts significant difficulty.” In

support of this argument she cites Burrell v. Virginia,

a Fourth Circuit case, as a “prime example.” 395 F.3d

508 (2005). While the district court’s dismissal on

Rooker-Feldman grounds was overturned, that case

does not raise an issue of complexity or question

regarding “inextricably intertwined.” The Burrell

Court held: “the concern addressed by Rooker-

Feldman — that lower courts will not act as Courts of

Appeals from State courts — is simply not present and

the doctrine does not bar federal court review of

Rurrell’s claims.” /d. at 512.

Burrell had been criminally charged with opera-

tion of an uninsured motor vehicle without paying an

uninsured motorist fee, and obstruction of justice. He

sued in federal district court for emotional distress,

emotional pain, inconvenience, mental anguish, and

1]

damage to reputation alleging violation of rights

including Fifth Amendment, due process commerce

clause, and civil liability under the Racketeer Influ-

enced and Corrupt Organizations Act (RICO). The

district court was simply wrong in applying Rooker-

Feldman to bar a civil suit which arose from a crimi-

nal arrest. Burrell was not a state court loser seeking

to overturn a state court judgment. In fact, the crimi-

na! charges were dismissed prior to his filing suit in

federal court. The Fourth Circuit had no problem

determining the correct application of the doctrine.

The fact that a lower court’s decision was overturned

does not give rise to grant Certiorari.

Additionally, Dodson cites the Eleventh Circuit

in Wood v. Orange County, 715 F.2d 1543 (11th Cir.

1983), as support for her Petition. Wood is also distin-

guishable from the case at bar and does not support

the theory that the analysis of “inextricably inter-

twined” needs definition by this Court. In Wood, it

was clear the Plaintiff did not have an opportunity to

raise the issue in the lower court, causing the Rooker-

Feldman bar not to apply. “Interpreting Rooker to

preclude a federal district court from considering an

issue that the plaintiff had no reasonable opportunity

to raise in state court might pose due process prob-

lems.” (Wood at 1547) citing Testa v. Katt, 330 U.S.

386, 67 S.Ct. 810 (1947), and General Oil v. Crain,

209 U.S. 211, 28 S.Ct. 475 (1908).

Dodson alleges that the Eighth Circuit Panel was

conflicted in the application of the “inextricably

intertwined” element of the Rooker-Feldman doctrine,

12

justifying the Writ of Certiorari. Dodson is mistaken.

Dodson is relying on a footnote in the Opinion affirm-

ing dismissal of the Dodson case. The footnote reads:

It appears there is some tension in our prior

precedents as to whether the Rooker-

Feldman doctrine will bar a federal court

from exercising jurisdiction when a state

court previously ruled against the plaintiff

without reaching the merits of the dispute.

Dodson v. Univ. of Ark. for Medical Sciences, 601 F.3d

750, ___ n.5 (8th Cir. 2010). The Court points to two

of their prior holdings, Friends of Lake View Sch.

Dist. No. 25 v. Beebe, 578 F.3d 753 (8th Cir. 2009)

(a state court’s failure to reach the merits of an issue

does not preclude federal court jurisdiction under

Rooker-Feldman) and Goetzman v. Agribank, FCB (In

re Goetzman), 91 F.3d 1173, 1178 (8th Cir. 1996)

(reaching the final merits on an issue does not deter-

mine the applicability of Rooker-Feldman).

Failure to reach the merits of the dispute is a

different issue than whether two cases are inextrica-

bly intertwined. Dodson mistakenly relies on this

footnote’s reference to tension in the Court’s prior

precedents, as the footnote is irrelevant to the dispute

in question. The footnote that Dodson relies upon

does not apply to the present case. As stated above,

the footnote refers to the applicability of Rooker-

Feldman in cases where the previous state court

issues did not reach the merits of the case. The panel

explained how the Arkansas state court reached the

merits in Dodson: “this is not a case in which the

13

state court simply held it lacked jurisdiction and

dismissed the plaintiff's case without prejudice.

Rather, the state court discussed the merits of [Peti-

tioner’s] case extensively and dismissed Dodson II

with prejudice.” Dodson v. Univ. of Ark. for Medical

Sciences, 601 F.3d 750, __, (8th Cir. 2010). The

footnote serves as a note of clarification from the

majority to indicate that the merits were reached and

dismissal of Dodson II was proper. This note is not an

avenue to grant a Writ of Certiorari.

Moreover, this case is clearly distinguishable

from Friends of Lake View. In that case, the Eighth

Circuit held Rooker-Feldman did not apply because,

in the state proceedings, the Arkansas Supreme

Court released jurisdiction without considering the

merits of the constitutional claim, although the claim

was raised and fully briefed. Friends of Lake View

Sch. Dist. No. 25 v. Beebe, 578 F.3d 753, 759. Unlike

Friends of Lake View, the Dodson II court did not

simply dismiss the claims based on lack of jurisdic-

tion, but extensively reviewed Dodson’s claims and

the conduct of UAMS to determine whether UAMS’s

conduct was ultra vires, illegal, unconstitutional, or

arbitrary to reach its decision that sovereign immunity

applied. Dodson v. Univ. of Ark. for Medical Sciences,

601 F.3d 750 (8th Cir. 2010). Because the court in

Dodson II fully discussed and considered the merits of

Dodson’s claims, the panel affirmed the lower court’s

finding that Rooker-Feldman barred federal jurisdic-

tion. Jd. In fact, in Dodson II the parties stipulated

“the court shall determine as a matter of law whether

14

or not plaintiff has a claim, and not whether she

stated a claim.” Pet. App. 42.

The Eighth Circuit’s concurring opinion does not

support Petitioner’s reliance on the “tension” refer-

enced in footnote 5 of the panel’s majority opinion and

Friends of Lake View. In fact, the concurring opinion

does not address whether the merits of Dodson’s case

were reached in the previous state courts, as dis-

cussed in the majority’s opinion. The concurrence

focuses on whether the harm to Dodson was caused

by a legal conclusion rather than a state court judg-

ment, not whether the previous court reached the

merits of the claim. The clarification and limitations

on Rooker-Feldman from Exxon Mobil v. Saudi Basic

Indus. Corp., are discussed by Judge Melloy. He

explained Dodson is clearly distinguishable from

post-Exxon cases. Dodson v. Univ. of Ark. for Medical

Sciences, 601 F.3d 750 (8th Cir. 2010) (Melloy, J.,

concurring).

In Exxon, the plaintiff was not seeking to over-

turn the (favorable) verdict. Exxon Mobil v. Saudi

Basic Indus. Corp., 544 U.S. 280, 125 S.Ct. 1517

(2005). “The Court of Appeals, on its own motion,

raised the [issue of]... subject matter jurisdiction ...”

and improperly applied Rooker-Feldman to the case

during an interlocutory appeal based on the Foreign

Sovereign Immunities Act of 1976, 28 U.S.C. § 1602,

et seq. (2000 ed. and Supp. II). Jd. at 290. “Exxon

Mobil, at that point prevailing in Delaware, was not

seeking to overturn the state-court judgment. ... In

both [Rooker and Feldman], the losing party in state

court filed suit in federal court after the state pro

ceeding ended, complaining of an injury caused by the

state-court judgment and seeking review and rejec

tion of that judgment. Plaintiffs in both cases

called upon the District Court to overturn an injuri-

ous state-court judgment.” Jd. at 291-92. Dodson also

called upon the district court to overturn an injurious

state-court judgment and “properly invoked concur

rent jurisdiction” did not exist.

To understand this further, we must analyze

Dodson against Riehm v. Engelking, cited for the

notion that Rooker-Feldman would not apply when an

unconstitutional action was being challenged rather

than the court order from which the unconstitutional

actions arose. 538 F.3d 952 (8th Cir. 2008). Riehm

involved an ex-parte order for immediate custody of

David Riehm, a 17-year-old student, placing him in

emergency protective care. Riehm wrote essays which

raised the question of whether he might intend harm

to himself or others. An ex-parte order was enforced, a

psychiatric evaluation was had and Riehm was

released after 72 hours. The order was not chal-

lenged, nor did the order continue to cause harm to

Riehm, because he had been released. Riehm sued for

violations of his right to free speech, unreasonable

seizure, his mother’s right to family integrity, and due

process for failure to pay medical bills and state law

claims. Riehm, 538 F.3d at 965.

Procedurally, Dodson and Riehm differ in that

Dodson was a party to the Control and Disposition

Agreement which was a subject of all three suits.

16

Also, Dodson was a party to all three suits, and all

three judgments essentially upheld enforcement of

the control and disposition agreement. The actions of

UAMS are controlled by these state court judgments,

and thus, distinguishable from Riehm. The distinc-

tion between Dodson and Riehm does noi support the

idea that tension over Rooker-Feldman exists to

necessitate Supreme Court review of this matter.

Granting a Writ of Certiorari in this matter

would not ease “tension,” if any, of this Court’s prior

precedents or converge the majority and concurring

opinions, as Dodson suggests. Therefore, the Petition

for Writ of Certiorari should be denied.

2. The district court correctly held that it lacked

subject matter jurisdiction over Petitioner’s claims

under the Rooker-Feldman doctrine. It is clear that

the object of Petitioner’s federal lawsuit was to obtain

district court “appellate” review of the rulings by the

Pulaski County Chancery Court and the Hot Spring

County Chancery Court. Under the Rooker-Feldman

doctrine, federal courts lack subject matter jurisdic-

tion to hear such attempted appeals. “Ihe Rooker

Feldman doctrine recognizes that, with the exception

of habeas corpus petitions, lower federal courts lack

subject matter jurisdiction over challenges to state

court judgments.” Lemonds v. St. Louis County, 222

F.3d 488, 492 (8th Cir. 2000), cert. denied, 531 U.S.

1183 (2001) (citing District of Columbia Court of

Appeals v. Feldman, 460 U.S. 462, 476, 482 (1983);

Rooker v. Fidelity Trust Co., 263 U.S. 413, 416 (1923).

17

Federal district courts are prohibited not only

from exercising jurisdiction over straightforward

appeals from state court decisions, but also indirect

attempts to undermine state court decisions, and

thus are barred “from exercising jurisdiction over

general constitutional claims that are ‘inextricably

intertwined’ with specific claims already adjudicated

in state court.” Lemonds, 222 F.3d at 492-93. See

Feldman, 460 U.S. at 486-87. “A general federal claim

is inextricably intertwined with a state court judg-

ment ‘if the federal claim succeeds only to the extent

that the state court wrongly decided the issue before

it.’” Lemonds, 222 F.3d at 493 (citing Pennzoil Co. v

Texaco Inc., 481 U.S. 1, 5 (1987)). If the federal court

can only provide relief by determining that the state

court was wrong, “it is difficult to conceive of the

federal proceeding as, in substance, anything other

than a prohibited appeal of the state-court judgment”

that is barred by Rooker-Feldman. Id. See also Ace

Constr. v. City of St. Louis, 263 F.3d 831, 832-33 (8th

Cir. 2001); Ballinger v. Culotta, 322 F.3d 546, 548-49

(8th Cir. 2003); Prince v. Arkansas Bd. of Examiners,

380 F.3d 337, 340 (8th Cir. 2004).

In applying Rooker-Feldman to Dodson’s Com

plaint, the district court correctly found Dodson’s

claims to be “inextricably intertwined with the State

court proceedings. .. . |and] could succeed only upon a

finding that the state courts wrongly decided the

issues.” Pet. App. 31-32.

During the hearing, Judge Moody ruled from the

Bench stating:

1

8

“— the relief sought is essentially the same.

And for me to accept this case and decide the

case on the merits would potentially just

effectively reverse the state court ruling in

order for your client to prevail. And that’s

exactly what Rooker-Feldman says _ this

Court should not do.

Now the other issue, even though the

claims, the parties may not be exactly the

same, the law also is clear that if the claims

are ... inextricably intertwined, then, in

other words, if they are basically the same

issues just stated in a different way then I

should not accept jurisdiction of that case.

So, I’m going to rule that I don’t have ju-

risdiction based on Rooker-Feldman.”

App. 2-3.

3. All three circuit judges determined dismissal

was proper; and rehearing en banc was not warrant-

ed. Certiorari is not necessary in this case. At the end

of the district court’s ruling from the Bench, Judge

Moody stated: “although I don’t think it’s necessary to

address it, I do think that there’s a serious question

that all of these claims are barred by res judicata.”

App. 3. The court was correct. Judge Melloy’s concur-

ring opinion agreed that the dismissal of Count 1

should be affirmed but under res judicata and collat-

eral estoppel. Thus, the resuit would be the same.

Dodson previously litigated her claims for specific

performance and knowingly failed to raise § 1983

19

claims in state court in 2000. Dodson was barred from

bringing this suit by res judicata and collateral

estoppel. Because the district court could be affirmed

“on any ground supported by the record,” dismissal

was proper and the Petition for Writ of Certiorari

should not be granted. See Ballinger v. Culotta, 322

F.3d 546, 548 (8th Cir. 2003).

Rooker-Feldman doctrine is a jurisdictional bar

preventing federal courts from acting as appellate

courts over state court judgments. Collateral estoppel

and res judicata are doctrines of claim preclusion

dealing with the legal issue of whether the claim has

actually been decided either in state court or federal

court, or both. The two doctrines serve similar pur-

poses in that they each preclude a second “bite at the

apple” but serve different functions and both can

apply in one case, as in Dodson. Dodson’s claims are

barred by both Rooker-Feldman and res judicata.

Dismissal was proper and Certiorari should not be

granted.

Federal courts must “give the same preclusive

effect to state court judgments that those judgments

would be given in the courts of the state from which

the judgments emerged. (citation omitted) ... Con-

gress has directed federal courts to look principally to

state law in deciding what effect to give state-court

judgments.” Lance v. Dennis, 546 U.S. 459, 466

(2006). “The purpose of res judicata is to put an end

to litigation ... ” Powell v. Lane, 289 S.W.3d 440, 444

(Ark. 2008); to ensure the finality of judicial deci-

sions. Brown v. Felsen, 442 U.S. 127, 131 (1979).

20

Dodson’s constitutional claims, if they exist at all,

could and should have been brought in the Pulaski

County Chancery Court and were thus _ properly

barred by res judicata as determined by Judge

Melloy’s concurring opinion. Dismissal of Count |

does not change by Melloy’s concurrence. Dodson has

not articulated how a Writ of Certiorari is necessary

in this case when all three circuit judges affirmed the

district court.

VI. Conclusion

Dodson’s Petition for Writ of Certiorari should be

denied, as it does not meet the requirements of Rule

10 of the United States Supreme Court. There is no

important question of federal law that has not been

settled, or that conflicts with relevant decisions of

this Court. Further there is no case or controversy

permitting review. For the above-discussed reasons,

Dodson’s Petition for Writ of Certiorari should be

denied.

Respectfully submitted,

ELIZABETH THOMAS SMITH

Attorney for University Respondents

UNIVERSITY OF ARKANSAS

2404 North University Avenue

Little Rock, AR 72207-3608

(501) 686-7608

esmith@uams.edu

App. 1

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

PATRICIA DODSON, Plaintiff,

Vv. No: 4:08CV03925 JMM

UNIVERSITY OF ARKANSAS FOR MEDICAL

SCIENCES, by and through the University of

Arkansas System Board of Trustees; JAMES E.

LINDSEY, Trustee, in his official capacity only;

TIM E. HUNT, Trustee, in his official capacity only;

JANE ROGERS, Trustee, in her official capacity

only; CARL JOHNSON, Trustee, in his official

capacity only; JOHN ED ANTHONY, Trustee, in

his official capacity only; MIKE AKIN, Trustee, in

his official capacity only; SAM HILBURN, Trustee,

in his official capacity only; JIM VON GREMP,

Trustee, in his official capacity only; JOHN TYSON,

Trustee, in his official capacity only; BEN

HYNEMAN, Trustee, in his official capacity only;

B. ALAN SUGG, President of the University of

Arkansas System, in his official capacity only; I.

DODD WILSON, M.D., Chancellor, University of

Arkansas for Medical Sciences, in his official and

individual capacity; and JACKSON O. LAY,

Defendants.

Friday, February 27, 2009,

Little Rock, Arkansas, 9:01 a.m.

TRANSCRIPT OF HEARING

ON MOTIONS TO DISMISS

BEFORE THE HONORABLE JAMES M. MOODY,

UNITED STATES DISTRICT JUDGE

App. 2

APPEARANCES:

On Behalf of the Plaintiff:

MR. RICHARD “CHRIS” MADISON,

Attorney at Law

Madison Law Firm

3011 Corporate Center Drive

Bryant, Arkansas 72022

* * +

[37] just simply doesn’t have subject matter jurisdic-

tion in a challenge to a state court decision.

Now, I realize that your point is that the issues

that you are raising here, the constitutional issues

under Section 1983, are different in some way than

those decisions that were presented in either the Hot

Springs Chancery Court or the Pulaski County Chan-

cery Court. But when I look at those cases and com-

pare them with the claims that are being asserted

here, even though the vehicle under which you are

bringing the claim is different - I mean, it is a 1983

claim as opposed to the claims that were asserted in

the state court case — the relief that was sought is

essentially the same. And for me to accept this case

and decide the case on the merits would potentially

just effectively reverse the state court ruling in order

for your client to prevail. And that’s exactly what

Rooker-Feldman says that this Court should not do.

Now, the other issue, even though the claims, the

parties may not be exactly the same, the law also is

clear that if the claims are — and this phrase is hard

for me to say — inextricably intertwined, then, in

App. 3

other words, if they are basically the same issues just

stated in a different way, then I should not accept

jurisdiction of that case.

So I’m going to rule that I don’t have jurisdiction

based on Rooker-Feldman. So I will be dismissing the

complaint, which essentially moots your motion to

amend the complaint and add [38] John Doe defen-

dants.

And although I don’t think it’s necessary to

address it, I do think that there’s a serious question

that all of these claims are barred by res judicata.

That will be the ruling of the Court. Any questions

about anything? We'll be in recess.

MS. SMITH: Thank you, Your Honor.

(Proceedings concluded at 9:57 a.m.)

REPORTER'S CERTIFICATE

I certify that the foregoing is a correct transcript

from the record of proceedings in the above-entitled

matter.

/s/ Elaine Hinson, RMR, CRR, CCR Date: April 17, 2009.

United States Court Reporter

App. 4

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

PATRICIA DODSON, PLAINTIFF

v. NO. 4:08CV03925 JMM

UNIVERSITY OF ARKANSAS

FOR MEDICAL SCIENCES,

By and Through the

University of Arkansas System

Board of Trustees, et. al. DEFENDANTS.

ORDER

Pending is the Plaintiff's motion for a Temporary

Restraining Order. (Docket # 2). Defendants have

responded and state that the University of Arkansas

for Medical Sciences (“UAMS”) is currently maintain-

ing the embryos in question in a frozen state at its

facility. Defendants agree to maintain the embryos in

their current state and condition pending the final

resolution of this case. Accordingly, the Current

Medical Director at the University of Arkansas for

Medical Sciences is directed to continue to maintain

the frozen embryos at their current location and in

their current condition and state pending the final

resolution of this litigation.

Wherefore, Plaintiffs motion for Temporary

Restraining Order is denied as moot.

App. 5

IT IS SO ORDERED this 29th day of October,

2008.

s/ James M. Moody

James M. Moody

United States District Judge