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VOICENET COMMUNICATIONS, INC. v. PAPPERT

August 5, 2004.

VOICENET COMMUNICATIONS, INC., et al., Plaintiffs,
v.
GERALD J. PAPPERT, et al., Defendants.



The opinion of the court was delivered by: MARY A. McLAUGHLIN, District Judge

MEMORANDUM AND ORDER

The Court decides here the question of whether a pending Pennsylvania investigating grand jury is an "ongoing proceeding" under Younger v. Harris, 401 U.S. 37 (1971), obligating the Court to abstain. The Court finds that it is not.

I. Background

  The plaintiffs, Voicenet Communications, Inc. ("Voicenet") and Omni Telecom, Inc. ("OTI"), have sued various law enforcement representatives,*fn1 alleging violations of their constitutional and statutory rights by the defendants' seizure of Quikvue's computer equipment, pursuant to a search warrant. The plaintiffs provide computer access to Usenet, an internet discussion and posting forum, for their subscribers.*fn2 Usenet consists of newsgroups that contain articles posted daily on many different topics. Compl. ¶¶ 19, 21-23. OTI and Voicenet designed, maintained, and made Quikvue, a Usenet newsreader service, available to its customers in September of 2003.*fn3 Quikvue is a web-based newsreader that allows its users to access and view Usenet content. Compl. ¶¶ 31-32.

  The Affidavit of Probable Cause alleges that the defendant Deery received a complaint in November of 2003 regarding the possible distribution and possession of child pornography on Quikvue. See Aff. of Probable Cause for Search Warrant, at 2-4. The Bucks County District Attorney's Office obtained a search warrant on January 20, 2004. On January 21, 2004, the defendants seized equipment used for the operation of Quikvue. See Compl. ¶ 41.

  The plaintiffs filed a complaint and motion for a temporary restraining order and a preliminary injunction against the defendants on March 26, 2004. The complaint alleges that the defendants' seizure of the plaintiffs' servers was illegal and that the defendants' actions were an impermissible prior restraint on free speech.*fn4 In the complaint, the plaintiffs request money damages and injunctive and declaratory relief.*fn5

  The Court held a conference with counsel on March 29, 2004, at which time the plaintiffs agreed to withdraw their motion for a temporary restraining order. Counsel then agreed to a hearing to discuss the legal issues raised in the motion for a preliminary injunction, including Younger abstention issues. The Court held oral argument on April 12, 2004.

  The Court next held conferences with counsel on April 20, 2004 and April 23, 2004. The Court told counsel its view at that time that abstention was not appropriate because there was no ongoing state proceeding. The Court urged the defendants to return the equipment, based on concern about possible First Amendment violations. The defendants agreed to the return. The defendants also agreed not to review any subscriber information that was seized without giving advance notice to the plaintiffs.

  The Court sent a letter to counsel on June 21, 2004 explaining that the Court was planning to issue a decision by July 2, 2004 on the plaintiffs' motion for preliminary injunction. On July 2, 2004, however, the Court received a letter from the defendants explaining that an investigating grand jury had been convened in Bucks County and renewing its request that the Court abstain under Younger.

  The Court scheduled a hearing for July 13, 2004 to discuss the defendants' renewed motion to abstain. On July 12, 2004, the defendants Pappert and Deery filed a motion to quash subpoenas of Special Agent Deery and Senior Supervisor Special Agent Arter of the Computer Forensics Unit. On the same day, the defendants Gibbons, McDonough, and Thiel filed a motion to vacate this Court's Order of July 7, 2004, or, in the alternative, to quash subpoenas.*fn6 The Court issued an Order stating that the motions to quash, as well as the Younger abstention issues, would be argued at the hearing the next day, but no witnesses need attend at that time.

  At the hearing on July 13, 2004, counsel made arguments about the new developments and whether abstention is now appropriate. Counsel informed the Court that the plaintiffs' counsel had entered their appearance on behalf of Voicenet and OTI before the Honorable Kenneth G. Biehn of the Bucks County Court of Common Pleas on June 17, 2004. On June 22, 2004, Judge Biehn, as the supervising judge of the grand jury, granted the plaintiffs' Petition for a Continuance of Grand Jury Appearance and Access to Documents Relating to Grand Jury Administration. On June 30, 2004, the plaintiffs filed an Omnibus Motion to Quash Grand Jury Investigation. The supervising judge denied that motion and issued an opinion denying the appeal of that decision on July 7, 2004. The plaintiffs filed an emergency application for review on July 9, 2004 with the Pennsylvania Supreme Court.

  At the July 13, 2004 hearing before this Court, the parties agreed that the Court could not dismiss the entire case even if Younger is applicable, because the plaintiffs seek money damages in addition to injunctive and declaratory relief.*fn7 The Court then issued a Memorandum and Order denying the motion for a preliminary injunction on July 15, 2004. The plaintiffs have appealed the denial of the preliminary injunction. The Court now turns to the Younger abstention issues for the rest of the case.

  II. Analysis

  The defendants ask the Court to abstain from deciding this case under Younger. The Third Circuit has stated, "Abstention under Younger is appropriate only where: (1) there are ongoing state proceedings that are judicial in nature; (2) the state proceedings implicate important state interests; and (3) the state proceedings afford an adequate opportunity to raise the federal claims." Lui v. Comm'n on Adult Entm't Establishments of Del., 369 F.3d 319, 326 (3d Cir. 2004) (citing Gwynedd Props., Inc. v. Lower Gwynedd Township, 970 F.2d 1195, 1200 (3d Cir. 1992)). The question is whether an investigative grand jury satisfies the requirement of Younger.*fn8 The plaintiffs rely on a case from this circuit in which the Court of Appeals held that a New Jersey grand jury proceeding did not invoke Younger abstention. Monaghan v. Deakins, 798 F.2d 632 (3d Cir. 1986), aff'd in part and vacated in part, 484 U.S. 193 (1988). The court ruled that the grand jury ...


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