                                  RECOMMENDED FOR FULL-TEXT PUBLICATION
                                       Pursuant to Sixth Circuit Rule 206
                                               File Name: 05a0124p.06

                         UNITED STATES COURT OF APPEALS
                                          FOR THE SIXTH CIRCUIT
                                            _________________


                                                         X
                                 Plaintiffs-Appellants, -
 LINDA GILBERT, et al.,
                                                          -
                                                          -
                                                          -
                                                              No. 04-1207
           v.
                                                          ,
                                                           >
 JOHN D. FERRY, JR., et al.,                              -
                                Defendants-Appellees. -
                                                         N
                          Appeal from the United States District Court
                       for the Eastern District of Michigan at Ann Arbor.
                     No. 03-60185—Marianne O. Battani, District Judge.
                                            Argued: January 28, 2005
                                     Decided and Filed: March 10, 2005
              Before: BOGGS, Chief Judge; KENNEDY and MARTIN, Circuit Judges.
                                               _________________
                                                     COUNSEL
ARGUED: Richard L. Steinberg, RICHARD L. STEINBERG, P.C., Detroit, Michigan, for
Appellants. Gary P. Gordon, OFFICE OF THE ATTORNEY GENERAL, Lansing, Michigan, for
Appellees. ON BRIEF: Richard L. Steinberg, RICHARD L. STEINBERG, P.C., Detroit,
Michigan, for Appellants. Margaret A. Nelson, OFFICE OF THE ATTORNEY GENERAL,
Lansing, Michigan, for Appellees.
                                               _________________
                                                   OPINION
                                               _________________
       KENNEDY, Circuit Judge. The Plaintiffs filed this § 1983 action against four justices of the
Michigan Supreme Court, seeking a declaration that the Defendant justices’ failure to recuse
themselves from two cases pending before the Michigan Supreme Court violated their Fourteenth
Amendment due process   right to a fair hearing before an impartial tribunal because the justices were
biased against them.1 The district court dismissed the action for lack of subject matter jurisdiction

         1
            The Plaintiffs also named John Ferry, Jr., the State Court Administrator of Michigan, as a defendant. The
Plaintiffs requested an injunction mandating Ferry to remove the two cases at issue from the Michigan Supreme Court’s
docket and to re-assign them to a special docket to be heard by a panel of Michigan Court of Appeals judges. The district
court correctly concluded that Ferry, who is responsible for regulating the Michigan Supreme Court’s calender, is
absolutely immune from injunctive relief under the judicial immunity doctrine. Gilbert, et al., v. Ferry, Jr., et al., 298
F. Supp. 2d 606, 612 (E.D. Mich. 2003). The Plaintiffs do not appeal this conclusion. Insofar as the Plaintiffs seek a
declaration that Ferry violated their due process right to a fair hearing by failing to remove the cases from the Court’s


                                                            1
No. 04-1207                Gilbert, et al. v. Ferry, et al.                                                        Page 2


on the basis of the Rooker-Feldman doctrine, holding that since the Plaintiffs had raised the same
due process arguments they now raise in this § 1983 claim in motions for recusal filed against the
Defendant justices in state court, which the justices denied, it could not conclude that the Plaintiffs
suffered a due process violation without concluding that the justices wrongly decided the motions
for recusal. In response, the Plaintiffs argued that the Rooker-Feldman doctrine did not apply
because they filed this § 1983 claim before the justices denied their motions for recusal. The district
court held that, even if the Rooker-Feldman doctrine did not bar its exercise of jurisdiction when the
Plaintiffs filed this action, it nonetheless would have abstained from entertaining the Plaintiffs’ suit
on the basis of the Younger abstention doctrine. We agree with the conclusions reached by the
district court, and AFFIRM.
                                                 BACKGROUND
        Plaintiff Fieger, a well-known trial lawyer in Michigan, represented Plaintiffs Gilbert,
Graves, and Amedure in civil actions filed in the Michigan state court system. Plaintiff Feiger
secured a substantial judgment in favor of Plaintiff Gilbert against DaimlerChrysler Corporation,
and, in a separate civil action, secured a substantial judgment in favor of Plaintiffs Graves and
Amedure against Warner Brothers Corporation. Both judgments were appealed. In Gilbert v.
DaimlerChrysler Corp., 2002 WL 1767672 (Mich. Ct. App. July 30, 2002) (per curiam), the
Michigan Court of Appeals affirmed the judgment in Gilbert’s favor. DaimlerChrysler then applied
for leave to appeal to the Michigan Supreme Court, which was granted by a unanimous Order
entered on April 8, 2003. Gilbert v. DaimlerChrysler Corp., 468 Mich. 883 (2003). That order also
permitted the Michigan and the United States Chambers of Commerce to file briefs separately as
amicus curiae. Id. On April 16, Gilbert filed a motion for recusal against Justices Corrigan, Taylor,
Young, and Markman. In a lengthy brief in support of her motion, Gilbert argued that recusal was
necessary because the probability of actual bias on the part of the justices was too high to be
constitutionally tolerable. Gilbert identified two sources of potential bias. First, she claimed that
the justices had a pecuniary interest in the case 2because they had received large monetary donations
and campaign support from the amicus curiae. Second, she asserted, the justices’ public discourse
revealed a deep-rooted animus toward Plaintiff Fieger.3 On September 17, 2003, the justices denied
Gilbert’s motion for recusal.
       In the second case, Graves, et al., v. Warner Bros., et al., 253 Mich. App. 486 (2002), the
Michigan Court of Appeals reversed a judgment favorable to Plaintiffs Graves and Amedure. The
Graves plaintiffs then requested leave to appeal to the Michigan Supreme Court, which was denied.
Thereafter, Graves and Amedure filed a motion for recusal against the Defendant justices, alleging
the same grounds for recusal as were raised in the Gilbert motion for recusal. On October 10, 2003,
the Defendant justices denied the motion.




docket, their position is without merit, as Ferry has no power to remove and re-assign cases, but rather works solely
under the supervision and direction of the Michigan Supreme Court.
         2
          The Plaintiffs allege that Justices Young, Markman, and Taylor received approximately three million dollars
in campaign contributions from one, or more, of their amicus curiae. They allege that receipt of these funds, and the
expectation of future, similar , campaign contributions, constitutes a direct pecuniary interest in the outcome of Gilbert’s
case.
         3
            For instance, during an address made at the August 2000 GOP State Convention, Justice Robert Young is
alleged to have stated: “[W]e support personal accountability. That means that if you’re stupid enough to put hot coffee
between your legs … and get burned, you don’t come to the Michigan Supreme Court for relief. … Geoffrey Fieger, and
his trial lawyer cohorts hate this court. There’s honor in that.”
No. 04-1207                Gilbert, et al. v. Ferry, et al.                                                         Page 3


        The Plaintiffs initiated the current action on September 5, 2003, nearly five months after
Gilbert filed her motion for recusal, but two weeks before the Defendant justices denied this motion.
In support of this § 1983 action for violation of their due process right to a fair hearing before an
impartial tribunal, the Plaintiffs raise the same arguments that they raised in their motions for
recusal, namely, that the Defendant justices were biased against them because they had a pecuniary
interest in the Gilbert case because the Michigan Chamber of Commerce, appearing before the
justices as an amicus curiae, donated millions of dollars to their respective campaigns, and because
the justices expressed personal and professional animus toward Mr. Fieger. After oral argument on
the parties’ respective motions for summary judgment, the district court granted the Defendants’
motion to stay discovery. The Plaintiffs filed a motion for reconsideration of that order, which the
district court denied. Thereafter, the district court issued an opinion and order granting the
Defendants’ motion to dismiss. Gilbert, 298 F. Supp. 2d 606. This appeal followed.
                                                      ANALYSIS
I.       Order Staying Discovery
         Before considering whether the district court properly dismissed this action, we must first
address the Plaintiffs’ complaint concerning the district court’s order to stay discovery. The
Plaintiffs argue that this order prevented them from developing the facts necessary to establish
subject matter jurisdiction. When a defendant challenges a court’s actual subject matter jurisdiction,
as opposed to the sufficiency of the allegations of subject matter jurisdiction in the complaint, the
parties must be given an opportunity to secure and present relevant evidence to the existence of
jurisdiction. Gould, Inc. v. Pechiney Ugine Kuhlmann, 853 F.2d 445, 451 (6th Cir. 1988). The
Plaintiffs, however, fail to explain what evidence relevant to subject matter jurisdiction they were
denied from obtaining. Rather, they merely assert that it was an “abuse of discretion for the district
court to have forbidden the depositions of key non-party witnesses, whose testimony was critical
to a fair resolution of the issues.” Nowhere do they inform us as to what witnesses were necessary,
how their testimony was critical, or even to what issues they would address. In the portion of their
brief in which they argue that the district court erred in failing to grant them declaratory relief, they
do complain that, as a result of the limited discovery afforded them, they were unable to uncover the
full extent of the amount of “soft-money” the justices’ campaigns received, nor the identities of all
contributors. This, however, has nothing to do with whether the district court had subject matter
jurisdiction.
         Here, the Defendants argued that the district court either lacked subject matter jurisdiction
on the basis of the Rooker-Feldman doctrine or was required to abstain from exercising its
jurisdiction on the basis of the Younger abstention doctrine. Thus, only facts relating to those two
issues were relevant for determining the Defendants’ motion to dismiss for lack of subject matter
jurisdiction. The facts necessary to the former issue dealt with whether the Defendant justices had
already decided the same issues presented by the current suit, while the fact necessary to resolve the
latter issue dealt with whether there were ongoing state proceedings involving the same legal and
factual issues as those presented in this case. The facts relevant to the analysis of these issues were
never in dispute.4
        Not only do the Plaintiffs not articulate any factual issue related to the subject matter
jurisdiction issues asserted by the Defendants and considered by the district court on which they
were denied an opportunity to secure evidence, the Plaintiffs also had a considerable opportunity
         4
           The Plaintiffs’ complaint filed in this matter alleged that Plaintiff Gilbert had an ongoing appeal pending before
the Michigan Supreme Court; that the Defendants were members of that court and in a position to decide the appeal; that
they had granted a motion for the Michigan Chamber of Commerce to participate as an amicus curiae in that case; and
that plaintiff Gilbert had filed a motion for recusal, requesting these Defendants to recuse themselves from hearing the
case for the same reasons as set forth in this federal complaint.
No. 04-1207                Gilbert, et al. v. Ferry, et al.                                                         Page 4


to secure and present evidence of jurisdiction. They were able to secure and present evidence
relating to jurisdiction after they filed their complaint, during the time they prepared their response
to the Defendants’ motion to dismiss, and while they were preparing their motion for summary
judgment. Therefore, we conclude that the district court did not abuse its discretion in ordering a
stay of discovery after the filing of the parties’ motions for summary judgment.
II.      Rooker-Feldman Doctrine and Younger Abstention
A.       Rooker-Feldman
        The district court dismissed the Plaintiffs’ claim for lack of subject matter jurisdiction on the
basis of the Rooker-Feldman doctrine. It noted that the Plaintiffs raised the same issues in both their
motion for recusal and in their § 1983 claim, namely 1) that the justices had an improper pecuniary
interest in the Gilbert case because the Michigan Chamber of Commerce had donated millions of
dollars to their election campaigns, and 2) that the justices were unable to perform their judicial
duties impartially because they had expressed personal and professional animus toward Mr. Fieger.
The court concluded, then, that it could not hold that the Plaintiffs had suffered a due process
violation on the ground that they would not receive a fair hearing before an impartial tribunal
without holding that the Defendant justices wrongly decided the motions for recusal.
         We analyze a district court’s conclusion that the Rooker-Feldman doctrine divested it of
subject matter jurisdiction under a de novo standard of review. Anderson v. Charter Township of
Ypsilanti, 266 F.3d 487, 491 (6th Cir. 2001). The Rooker-Feldman doctrine prohibits federal courts
below the United States Supreme Court from exercising “appellate jurisdiction over the decisions
and/or proceedings of state courts, including claims that are ‘inextricably intertwined’ with issues
decided in state court proceedings.” Executive Arts Studio, Inc., v. City of Grand Rapids, 391 F.3d
783, 793 (6th Cir. 2004) (citations omitted). This circuit has held that a “federal claim is
‘inextricably intertwined’ with a state-court judgment and thus implicates Rooker-Feldman when
‘the federal claim succeeds only to the extent that the state court wrongly decided the issues before
it.’” Id. See also Exxon Mobil Corp. v. Saudi Basic Indus., 364 F.3d 102, 104 (3d Cir. 2004), cert.
granted, 125 S. Ct. 310 (Oct. 12, 2004) (No. 03-1696) (“Because Congress has conferred
jurisdiction to review a state court’s decision only on the Supreme Court, see 28 U.S.C. § 1257,
lower federal courts lack the power to decide claims in which ‘the relief requested . . . requires
determining that the state court’s decision is wrong or . . . void[ing] the state court’s ruling.’”
(citations omitted)); Mandel v. Town of Orleans, 326 F.3d 267, 271 (1st Cir. 2003) (noting that the
Rooker-Feldman doctrine is “premised on the rule that . . . only the U.S. Supreme Court has
authority to invalidate state civil judgments. . . . The doctrine is widely used by the federal court[s]
to prevent end-runs around state judgments.”).
        The Plaintiffs argue that the Rooker-Feldman doctrine does not apply to divest the district
court of subject matter jurisdiction here because at the time they filed their complaint in this case
(on September 5, 2003) there had been no state judgment or order, and thus nothing that the Rooker-
Feldman doctrine prohibited the district court from reviewing.5 Dubuc v. Mich. Bd. of Law

         5
            The Plaintiffs’ argument that a state court’s order that is issued after the filing of a federal complaint cannot
divest a district court of its jurisdiction on the basis of the Rooker-Feldman doctrine was the only argument that they
raised in their main brief concerning the application of the Rooker-Feldman doctrine. However, in their reply brief, the
Plaintiffs raise two additional arguments as to why the Rooker-Feldman doctrine does not divest the district court of its
jurisdiction in this case. First, they repeat an argument presented to the district court, namely, that a denial of a motion
to recuse is not a “final” judgment, and therefore, the Rooker-Feldman doctrine should not apply. However, as the
district court correctly noted, this court in Pieper v. American Arbitration Association, 336 F.3d 458, 462 (6th Cir. 2003),
held that the Rooker-Feldman doctrine prohibits district courts from reviewing not only final state court judgments on
the merits, but also interlocutory orders. Second, they argue, the Rooker-Feldman doctrine should not apply because
decisions rendered by biased judges should be considered void. In essence, the Plaintiffs ask us to carve out an exception
to the Rooker-Feldman doctrine and permit the district courts to sit in review of state court judgments and orders when
No. 04-1207               Gilbert, et al. v. Ferry, et al.                                                       Page 5


Examiners, 342 F.3d 610, 619 (6th Cir. 2003) (noting that the Rooker-Feldman doctrine did not
apply because no state judgment had been issued regarding the issue the plaintiff raised to the
federal district court). By the time the Michigan Supreme Court issued its order denying Plaintiff
Gilbert’s motion for recusal (on September 17, 2003), the district court was already vested with
subject matter jurisdiction, and the Defendant justices’ order denying the motions to recuse, the
Plaintiffs assert, could not operate to divest the court of the jurisdiction that it already possessed.
In support of their position, the Plaintiffs note that with respect to diversity jurisdiction, subsequent
conduct by the parties, such as changing one’s domicile, cannot divest the court of its jurisdiction.
Similarly, the Plaintiffs argue, the Defendants should not be able “by their own unilateral acts” to
“escape being bound by the jurisdictional facts as they existed at the time the complaint was filed.”
However, even if we were to find that the Defendant justices’ orders issued subsequent to the filing
of the Plaintiffs’ complaint did divest the district court of its subject matter jurisdiction on the basis
of the Rooker-Feldman doctrine, it would not be the result of any unilateral acts of the Defendants.
Rather, the basis of the dismissal would be the result of a decision on the Plaintiffs’ own motions
for recusal. The inevitable consequence of the Plaintiffs filing motions for recusal, and not
withdrawing them after they filed their federal complaint, is that the Defendant justices would decide
the motions.
        The district court, in response to the Plaintiffs’ argument that a state order issued subsequent
to the filing of a federal complaint cannot divest a district court of its jurisdiction, made two
arguments. First, it noted, the Plaintiffs, on September 4, 2003, specifically requested the district
court to enter an emergency restraining order to enjoin the Michigan Supreme Court from taking any
further action in the pending case to prevent the triggering of the Rooker-Feldman doctrine.
Specifically, the Plaintiffs asserted, “If the [Michigan] Supreme Court denies [the motions], any
federally protected rights that [the district court] might be able to intervene and safeguard will be
lost under the Rooker-Feldman doctrine.” The district court further noted that the Plaintiffs’ fears
were realized shortly thereafter when the Michigan Supreme Court ruled on Plaintiff Gilbert’s
motion for recusal on September 17, 2003. The district court concluded: “Therefore, taking
Plaintiffs’ own argument at face value, the Rooker-Feldman doctrine divested the Court of subject
matter jurisdiction once the Michigan Supreme Court denied the motions.” We would not conclude,
however, simply because the Plaintiffs expressed concern that the Rooker-Feldman doctrine might
apply to divest the district court of its jurisdiction once the motions to recuse were decided, that the
Plaintiffs were therefore either bound by that opinion or waived their right to argue that, since the
motions to recuse were decided after they filed their complaint in federal court, the Rooker-Feldman
doctrine did not divest the district court of its jurisdiction.
        The district court also noted, and we agree, that once the Michigan Supreme Court decided
the motions to recuse, this suit became a de facto appeal of those decisions, regardless of when the
Plaintiffs filed the present action. Plaintiffs raised the same due process arguments in their motions
for recusal as they do in this suit, so that the district court could not conclude that the Plaintiffs
suffered a due process violation without finding that the motions to recuse were decided incorrectly.
The Rooker-Feldman doctrine forbids this action. Executive Arts, 391 F.3d at 793. The doctrine,
based upon principles of abstention and res judicata, promotes firmly-held notions of federalism and
comity by preserving the integrity “of the state court decision-making process” and “the repose of
state court judgments.” Adkins v. Underwood, 520 F.2d 890, 892-93 (7th Cir. 1975); see also Owens
v. Spirko, 54 F.3d 271, 274 (6th Cir. 1995). It is consistent with these principles to conclude that,
despite the fact that the Plaintiffs filed this claim before the motions to recuse were denied in state
court, the Rooker-Feldman doctrine nonetheless divested the district court of its subject matter
jurisdiction once the motions to recuse were denied. See Exxon Mobil, 364 F.3d at 105 (concluding
that the filing of a federal claim before a state court judgment is reached “does not escape Rooker-
a party alleges that the judges who decided her issue were biased against her. We decline to do so, for in such a case,
the party’s recourse is the same as that of all those parties who were unable to file a claim in federal district court on
account of the Rooker-Feldman doctrine, to petition for a writ of certiorari from the United States Supreme Court.
No. 04-1207               Gilbert, et al. v. Ferry, et al.                                                        Page 6


Feldman’s grasp. The only timing relevant is whether [a] state judgment precedes a federal
judgment on the same claims.”). As the Exxon Mobil court noted:
         [W]ere we to find that the Rooker-Feldman [doctrine] . . . did not apply to federal
         actions filed prior to the state court’s final judgment, we would be encouraging
         parties to maintain federal actions as “insurance policies” while their state court
         claims were pending. This defeats an “elementary principle” underpinning the
         Rooker-Feldman doctrine -- ‘that a party’s recourse for an adverse decision in state
         court is . . . ultimately [to] the Supreme Court under § 1257, not a separate action in
         federal court.
Id. (citations omitted).6
B.       Younger Abstention
        Even if we were to conclude that the Rooker-Feldman doctrine did not divest the district
court of its jurisdiction when the motions to recuse were decided in state court, we would still affirm
the dismissal of the Plaintiffs’ claim on the district court’s alternative theory, Younger abstention.
Generally, the Younger abstention doctrine counsels a federal court to abstain from adjudicating a
matter properly before it in deference to ongoing state proceedings. Tindall v. Wayne County Friend
of the Court, 269 F.3d 533, 538 (6th Cir. 2001). For purposes of determining whether a district court
should abstain from exercising its jurisdiction on the basis of the Younger doctrine, we consider
1) whether the underlying proceedings constitute an ongoing judicial proceeding, 2) whether the
proceedings implicate important state interests, and 3) whether there is an adequate opportunity in
the state proceedings to raise a constitutional challenge. Id. The Plaintiffs do not even cite Younger
or any case relating to the doctrine, let alone raise an argument contesting the application of the
Younger abstention doctrine. In any event, upon our own review, we conclude that all three factors
were met. The motions for recusal against the Defendant justices certainly constituted ongoing
judicial proceedings at the time the federal complaint was filed; important state interests, such as
when and under what circumstances Michigan Supreme Court justices should recuse themselves,
were implicated; and the Plaintiffs had an adequate opportunity to raise their constitutional
challenge, as evidenced by the fact that their lengthy brief in support of their motion to recuse
contained the same arguments and proofs as presented in their complaint filed in federal court.
         For the foregoing reasons, we AFFIRM.




         6
           The concern that a party may attempt to maintain her federal action as an insurance policy while her state court
proceedings were pending is especially acute here where the Plaintiffs filed this federal claim nearly five months after
they filed their motions to recuse in state court.
