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Doe v. Sywulak

October 20, 2010


The opinion of the court was delivered by: Tucker, J.


Presently before this Court is Defendant's Motions to Dismiss (Doc. 4). For the reasons set forth below, upon consideration of Defendant's Motion, Plaintiff's Response in Opposition thereto (Doc. 8), and Defendant's Reply (Doc. 10), this Court will grant Defendant's Motion in part. Count IV of Plaintiff's Complaint is dismissed for failure to state a claim. Counts I, II, III, V, VI, and VII are dismissed for lack of subject matter jurisdiction and the case is remanded to state court for resolution of these remaining state law counts.


From the evidence of record, taken in a light most favorable to the Plaintiff, the pertinent facts are as follows. Plaintiff, Jane Doe, is the natural mother of a minor child T.K., born in April 2000. Plaintiff was the primary custodial parent of T.K. from the child's birth through May 2007. On or about July 27, 2006, the father of T.K. ("John Doe") filed a petition for modification of custody with the Court of Common Pleas of Montgomery County. Plaintiff and John Doe retained the services of the Defendant for the purposes of conducting a custody evaluation. Defendant met with Plaintiff, John Doe, and T.K. between January 24, 2007 and April 1, 2007 to conduct the evaluation. During those meetings, Plaintiff advised Defendant that T.K. had previously been diagnosed with various psychological ailments and that he was sexually inappropriate. John Doe, however, reported that T.K. was a "normal child" who only "acted out" while in his mother's care.

On or about May 4, 2007, prior to the completion of her custody evaluation report, Defendant informed the Court that Plaintiff suffered from a form of child abuse known as Munchausen Syndrome by Proxy ("MSBP")*fn1 , was homicidal, suicidal and that Plaintiff suffered from an unidentified psychopathology. Defendant reported that Plaintiff induced T.K. to act in such a fashion as to mimic symptoms of bipolar disorder, ADHD, and mood disorders. Defendant further suggested that T.K. did not suffer from any psychological deficits and that he was not sexually inappropriate unless he was in his mother's custody. Defendant further reported that Plaintiff would kill her own child and then herself to keep from relinquishing custody of T.K. Plaintiff alleges that Defendant never reported her suspicions of abuse to the proper authorities. In response, however, the Court issued an Emergency Order for Custody suspending all custodial rights of Plaintiff and ordering immediate full legal and physical custody of T.K. to his father. Between July 2007 and December 10, 2007, Plaintiff was only allowed two, two-hour supervised visits with T.K. per month.

On December 10, 2007, Plaintiff and John Doe appeared for trial in the Court of Common Pleas of Montgomery County, and following extensive discussions with the presiding judge, an interim Order was entered in which John Doe retained primary custody. The Interim Order granted Plaintiff partial unsupervised custody.

On July 9, 2008, Plaintiff and John Doe entered into a final Agreement for Custody which provided for shared physical and legal custody of T.K. The presiding judge also dismissed Defendant's findings that Plaintiff suffered from MSBP.

On May 4, 2009, Plaintiff filed a Complaint against Defendant in the Court of Common Pleas of Chester County alleging the following seven counts: Count I for malpractice; Count II for negligence; Count III for breach of contract; Count IV for violation of civil rights pursuant to 42 U.S.C. §§ 1983, 1985, and 1988; Count V for intentional infliction of emotional distress; Count VI for negligent infliction of emotional distress, and Count VII for defamation.

On July 15, 2009, Defendant removed the case to federal court on the basis of federal question jurisdiction. Specifically, Defendant notes that in Count IV of the Complaint, Plaintiff avers federal civil rights violations pursuant to 42 U.S.C. §§ 1983, 1985, and 1988. On August 14, 2009, Defendant filed the Motion to Dismiss Plaintiff's Complaint (Doc. 4) for failure to state a claim. Plaintiff filed a Response in Opposition thereto (Doc. 8) on September 15, 2009, and Defendant filed a Reply to Plaintiff's Response (Doc. 10) on September 25, 2009. The Court now addresses this pending motion.


On a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), the court is required to accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom, and to view them in the light most favorable to the non-moving party. See Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 (3d Cir. 1994). A complaint should be dismissed only if the alleged facts, taken as true, fail to state a claim. See In re Warfarin Sodium, 214 F.3d 395, 397-98 (3d Cir. 2000). The question is whether the claimant can prove any set of facts consistent with his or her allegations that will entitle him or her to relief, not whether that person will ultimately prevail. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Semerenko v. Cendant Corp., 223 F.3d 165, 173 (3d Cir. 2000). While a court will accept well-pled allegations as true for the purposes of the motion, it will not accept bald assertions, unsupported conclusions, unwarranted inferences, or sweeping legal conclusions cast in the form of factual allegations. Morse v. Lower Merion School District, 132 F.3d 902, 906 (3d Cir. 1997). "The pleader is required to 'set forth sufficient information to outline the elements of his claim or to permit inferences to be drawn that these elements exist.'" Kost v. Kozakewicz, 1 F.3d 176, 183 (3d Cir. 1993) (quoting 5A Wright & Miller, Fed. Practice & Procedure: Civil 2d § 1357 at 340).


Defendant moves to dismiss each of the Counts in Plaintiff's Complaint for several reasons. With respect to Count IV for violations of her civil rights under 42 U.S.C. ยงยง 1983, 1985, and 1988, Defendant argues, inter alia, that these claims should be dismissed on the basis of judicial immunity arising out of her actions as a court-appointed psychologist retained to perform an evaluation in a custody action. ...

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