Mitrano v. Warshell

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-1524
PETER PAUL MITRANO,
Plaintiff - Appellant,
versus
ELAINE R. WARSHELL; DEBORA A. BLAKE; MARTHA M.
DAVIS; VIRGINIA L. KELLY; WILLIAM D. PHILLIPS;
L. JONATHAN ROSS; WIGGIN & NOURIE, PA; LARRY
B. PLETCHER; JOHN PETER CYR; WILLARD G.
MARTIN, JR.,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (CA-03-1298-A)
Submitted: August 17, 2005 Decided: October 20, 2005
Before WILKINS, Chief Judge, LUTTIG, Circuit Judge, and James C.
DEVER, III, United States District Judge for the Eastern District
of North Carolina, sitting by designation.
Affirmed by unpublished per curiam opinion.
Peter Paul Mitrano, Merrifield, Virginia, Appellant Pro Se. Robert
E. Draim, HUDGINS LAW FIRM, Alexandria, Virginia, for Appellee
Martha M. Davis; Renu M. Setaro, WRIGHT, ROBINSON, OSTHIMER &
TATUM, Richmond, Virginia, for Appellee Elaine R. Warshell; Carol
T. Stone, JORDAN, COYNE & SAVITS, L.L.P., Fairfax, Virginia, for
Appellees L. Jonathan Ross and Wiggin & Nourie, PA; Christopher W.
Schinstock, GANNON & COTTRELL, P.C., Alexandria, Virginia, for
Appellees Debora A. Blake, Virginia L. Kelly, and William David
Phillips; Daniel J. Mullen, NEW HAMPSHIRE ATTORNEY GENERAL’S
OFFICE, Concord, New Hampshire, for Appellees Larry B. Pletcher,
John Peter Cyr, and Willard G. Martin, Jr.; Sydney E. Rab, OFFICE
OF THE ATTORNEY GENERAL, Richmond, Virginia, for Appellees Larry B.
Pletcher, John Peter Cyr, and Willard G. Martin, Jr.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
Peter Paul Mitrano, an attorney proceeding pro se, appeals a
district court order dismissing his various claims against his ex-
wife, Virginia L. Kelly, and others (collectively, “Appellees”)
arising from a previously litigated domestic relations dispute. We
affirm.
I.
In 1992, Mitrano and Kelly obtained a divorce in the
Commonwealth of Virginia. At that time, Mitrano was granted
primary custody of the couple’s three minor children (Christina,
Peter Jr., and Christopher). Despite their divorce, the following
year Mitrano and Kelly moved to New Hampshire where they shared a
household and custody of their children until October 2000. On
October 16, 2000, Kelly filed an emergency petition in a New
Hampshire state court seeking custody of Christina. The court
awarded temporary custody to Kelly on an ex parte basis. Later, at
a hearing attended by both parties, the court awarded sole custody
to Kelly after determining that Mitrano had inappropriately
physically disciplined their daughter.
In late December 2000, without notifying Kelly, Mitrano moved
to Virginia with Peter Jr. and Christopher. Kelly petitioned for
and was granted temporary custody of the boys by the New Hampshire
state court. Kelly later sought enforcement of the New Hampshire
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order in Virginia. In response to Kelly’s action, Mitrano asked
three different Virginia judges to enforce the 1992 Virginia
custody order. All three determined that New Hampshire had
jurisdiction and directed Mitrano to obey the New Hampshire order.
The New Hampshire court subsequently found Mitrano in contempt for
moving his sons to Virginia without seeking permission from the
court. At the same time, Kelly traveled to Virginia to see her
sons and then moved with them to Vermont.
Mitrano filed suit in a Vermont state court seeking
enforcement, once again, of the 1992 Virginia custody order.
Mitrano continued to dispute the jurisdiction of the New Hampshire
court to make custody determinations and the validity of its child
custody orders. Mitrano argued to the Vermont state court that the
New Hampshire orders were invalid because New Hampshire was not the
children’s “home State” within the meaning of the Parental
Kidnapping Prevention Act (PKPA). 28 U.S.C.A. § 1738A(b)(4) (West
Supp. 2005). Specifically, Mitrano claimed that New Hampshire
could not be the children’s “home State” because neither he, Kelly,
nor their children were residents of New Hampshire after December
2000. See id. The Vermont court dismissed Mitrano’s petition
after determining that New Hampshire was the children’s “home
State” under the PKPA. Mitrano appealed this decision
unsuccessfully to the Supreme Court of Vermont. See Mitrano v.
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Kelly, 785 A.2d 191 (Vt. 2001) (unpublished table decision), cert.
denied, 534 U.S. 1115 (2002).
Undeterred by adverse rulings from the courts of three states,
Mitrano then sought declaratory and injunctive relief from the
United States District Court for the District of New Hampshire,
naming as the defendant the judge presiding over the New Hampshire
custody dispute. The district court denied relief, noting that
Mitrano, as an attorney, should have known that his claims were
meritless. See Mitrano v. Martin, No. 01-153-M, 2002 WL 122384, at
*1 (D.N.H. Jan. 22, 2002), aff’d, Nos. 02-1231, 02-1348 (1st Cir.
Aug. 29, 2002) (minute order).
Mitrano then filed this action in the Eastern District of
Virginia, naming as defendants Kelly, Kelly’s brother-in-law,
attorneys and judges associated with the New Hampshire and Vermont
litigation, and his own former attorney and law firm.1 The
district court granted Appellees’ motion to dismiss, concluding
that it lacked personal jurisdiction over each Appellee, see
Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d
390, 396-98 (4th Cir. 2003), and that it was without subject matter
jurisdiction under the domestic relations exception to federal
1
Mitrano filed an identical action in the District of New
Hampshire. The district court dismissed that case on
jurisdictional grounds, and the Court of Appeals for the First
Circuit affirmed. See Mitrano v. Warshell, Nos. 03-469-JD (D.N.H.
May 7, 2004), aff’d, No. 04-1784, 04-2230 (1st Cir. Sept. 16, 2005)
(minute order).
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jurisdiction, see Ankenbrandt ex rel. L.R. v. Richards, 504 U.S.
689, 703 (1992), and under the Rooker-Feldman doctrine, see D.C.
Ct. App. v. Feldman, 460 U.S. 462, 476, 482 & n.16 (1983); Rooker
v. Fid. Trust Co., 263 U.S. 413, 415-16 (1923).
II.
Mitrano contends that the district court erred in determining
that it lacked both subject matter and personal jurisdiction. We
review a dismissal for lack of subject matter or personal
jurisdiction de novo. See Nat’l Taxpayers Union v. Soc. Sec.
Admin., 376 F.3d 239, 241 (4th Cir. 2004), cert. denied, 125 S. Ct.
1300 (2005); Carefirst of Md., 334 F.3d at 396.
Having reviewed the briefs and applicable law, we conclude
that the district court correctly decided the issues before it. We
accordingly affirm the dismissal of Mitrano’s claims. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
III.
Following Mitrano’s appeal to this court, Appellees, excluding
the three New Hampshire state court judges, moved for sanctions
pursuant to Rule 38 of the Federal Rules of Appellate Procedure.
Under Rule 38, we are authorized to impose “just damages and single
or double costs” for frivolous appeals. Fed. R. App. P. 38; see
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Bast v. Cohen, Dunn & Sinclair, PC, 59 F.3d 492, 496 (4th Cir.
1995). We are permitted to award damages and costs “as a matter of
justice to the appellee and as a penalty against the appellant.”
Fed. R. App. P. 38 advisory committee notes.
Mitrano has proven himself to be extremely litigious. He has
persisted in filing multiple actions despite the unanimous
rejection of his claims by every court that has considered them.
With regard to his activity in the federal courts, Mitrano has
filed a declaratory judgment action in the District of New
Hampshire, this action, and an action nearly identical to this one
in the District of New Hampshire. In appealing the dismissal of
each of these actions, he has ignored repeated warnings from the
district courts regarding the frivolity of his claims.2
Moreover, when this appeal is considered together with all
connected litigation and evidence of Mitrano’s prior conduct in
unrelated lawsuits, a clear pattern of harassing lawsuits and
abusive behavior emerges. See In re Ballato, 252 B.R. 553, 558-59
(Bankr. M.D. Fla. 2000) (finding that Mitrano filed involuntary
bankruptcy petition in bad faith); Melka Marine, Inc. v. Town of
Colonial Beach, 37 Va. Cir. 108, 111-13 (1995) (imposing sanctions
on Mitrano for his “voracious” conduct of litigation). Finally, in
connection with the child custody proceedings underlying this
2
Indeed, Mitrano appears to recognize the impossibility of
success, characterizing this appeal as “the legal equivalent of
General Custer’s last stand.” Br. for Appellant at 37.
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appeal, Mitrano has been held in contempt of court by the New
Hampshire state court and has been assessed attorney’s fees more
than once, most recently by the district court in this case. See
Mitrano v. Warshell, No. 1:03cv1298 (E.D. Va. July 25, 2005) (order
granting motions for sanctions).
In light of the above, we grant the motion for sanctions.
Appellees are hereby directed to submit an itemized statement of
attorneys’ fees and costs to the Court and Mitrano within ten days
of this opinion issuing. Mitrano has 21 days from receipt of
Appellees’ statement to file objections. In addition, we enjoin
Mitrano from filing any further civil appeals in this court until
monetary sanctions are paid, and unless a district court certifies
that the appeal is not frivolous. See In re Vincent, 105 F.3d 943,
946 (4th Cir. 1997) (per curiam).
IV.
For the reasons set forth above, we conclude that the district
court correctly dismissed Mitrano’s complaint. Accordingly, we
affirm.
AFFIRMED
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