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LIPSON v. SNYDER

November 14, 1988

D. HERBERT LIPSON and PHILADELPHIA MAGAZINE, INC.,
v.
BERNARD SNYDER, M. MARK MENDEL and M. MARK MENDEL, LTD.



The opinion of the court was delivered by: MCGLYNN, JR.

 JOSEPH L. MCGLYNN, JR., UNITED STATES DISTRICT JUDGE

 This is a civil rights action brought pursuant to 42 U.S.C. section 1983 in which Defendants moved for dismissal under Fed. R. Civ. P. 12(b)(6). The matter was assigned to a Magistrate who issued a Report on September 23rd, 1988, recommending that Plaintiffs' claim be dismissed. Plaintiffs filed Objections to the Magistrate's Report and Recommendation, and Defendants M. Mark Mendel and M. Mark Mendel, Ltd. filed a Response. *fn1" Because my analysis brings me to a different conclusion, I cannot accept the Magistrate's Recommendation.

 I. BACKGROUND

 Plaintiffs in this action ("Plaintiffs") were defendants in a non-jury state court libel action, James Reginald Edghill v. Municipal Publications, Inc., D. Herbert Lipson, and Alan Halpern, May Term 1972, No. 2371 (hereinafter " Edghill " or "the state case"). The Edghill case was assigned to Defendant Snyder, who was at that time a judge of the Court of Common Pleas of Philadelphia County. Plaintiffs allege that Defendant Snyder conspired with Defendants M. Mark Mendel and M. Mark Mendel, Ltd., counsel for Mr. Edghill in the state case, to deprive them of their federally protected right to a fair trial, in violation of the Fourteenth Amendment of the United States Constitution.

 Plaintiffs allege that Defendants repeatedly had covert ex parte meetings and telephone conversations during the course of the trial. At such times, Defendants discussed trial tactics and conspired to produce a verdict in the state case based on extrajudicial considerations. Pursuant to this agreement, Defendant Snyder prolonged the trial for almost six months in order to increase Plaintiffs' litigation expenses; decided, after Plaintiffs moved for his disqualification, *fn2" to add $ 3 million to the punitive damages that would ultimately be awarded; and finally awarded $2 million in compensatory damages and $5 million in punitive damages to Mr. Edghill. For the purposes of this motion, I must accept these allegations as true.

 II. PROCEDURAL DUE PROCESS CLAIM

 Section 1983 provides that any person who under color of state law deprives another individual of any rights, privileges, or immunities secured by the Federal Constitution and laws, shall be liable to the injured party. In other words, section 1983 provides an express private remedy only where another federal right has been violated. Plaintiffs in this action allege that their federal procedural due process rights were violated by the conspiratorial activity.

 However, because creative attorneys began to dress up common law torts as procedural due process violations in order to state a section 1983 claim, the Supreme Court has limited the scope of procedural due process protection. See Parratt v. Taylor, 451 U.S. 527, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981) and Hudson v. Palmer, 468 U.S. 517, 82 L. Ed. 2d 393, 104 S. Ct. 3194 (1984). These cases limited and defined the scope of procedural due process by focussing on: (1) whether an action was "authorized" or "unauthorized" by the state; and (2) whether there was an "adequate" or "inadequate" postdeprivation remedy. In Parratt v. Taylor, the Court held that a post-deprivation remedy satisfied due process where a state official negligently deprived a prisoner of property. The Court reasoned that no predeprivation remedy would be possible since "the deprivation did not occur as a result of some established state procedure. Indeed, the deprivation occurred as a result of the unauthorized failure of agents of the State to follow established state procedure." 451 U.S. at 543.

 In Hudson v. Palmer, the Supreme Court extended the reasoning of Parratt to include cases of unauthorized intentional torts:

 
While Parratt is necessarily limited by its facts to negligent deprivations of property, it is evident, as the Court of Appeals recognized, that its reasoning applies as well to intentional deprivations of property. The underlying rationale of Parratt is that when deprivations of property are effected through random and unauthorized conduct of a state employee, predeprivation procedures are simply 'impracticable' since the state cannot know when such deprivations will occur. We can discern no logical distinction between negligent and intentional deprivations of property insofar as the 'practicability' of affording predeprivation process is concerned. The state can no more anticipate and control in advance the random and unauthorized intentional conduct of its employees than it can anticipate similar negligent conduct. Arguably, intentional acts are even more difficult to anticipate because one bent on intentionally depriving a person of his property might well take affirmative steps to avoid signalling his intent.

 468 U.S. at 533.

 Since the Complaint alleges a violation of procedural due process rights, the issue in the instant case, as correctly framed by the Magistrate, is "whether the plaintiffs' claim that they were deprived of a fair trial is barred by the Supreme Court's holdings in Parratt v. Taylor, 451 U.S. 527, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981), Hudson v. Palmer, 468 U.S. 517, 82 L. Ed. 2d 393, 104 S. Ct. 3194 (1984) and their progeny." Report and Recommendation at 7.

 The Magistrate concluded that their claim was barred by these cases. In order to do so, however, he had to deal with the seemingly dispositive language of Labov ...


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