Rooker-Feldman and Eleventh Amendment Dismissals Must Be Without Prejudice Even When Other Claims Fail on the Merits

1. Introduction

In Richard Silverberg v. DuPont De Nemours Inc. (Third Circuit, Aug. 18, 2026) (nonprecedential), attorney-plaintiff Richard J. Silverberg appealed the dismissal of two federal actions, “Silverberg III” and “Silverberg IV”, filed in the Eastern District of Pennsylvania against a wide range of defendants: major corporate entities, City of Philadelphia actors and counsel, state-court judges, and Pennsylvania’s attorney disciplinary apparatus (ODC and related individuals).

Silverberg alleged a sweeping conspiracy—what he labeled a “proxy war”—to deter him from publishing a book and to punish him for prior litigation. The alleged “proxy war” was said to manifest through (i) enforcement of longstanding Philadelphia tax judgments against him and (ii) initiation/continuation of Pennsylvania attorney disciplinary proceedings connected to the tax matters.

The key appellate issues were (a) whether the District Court correctly dismissed the complaints under doctrines limiting federal court power (notably Rooker-Feldman and Younger), (b) whether immunity doctrines barred claims against judges and disciplinary authorities, (c) whether the pleadings stated viable federal (RICO/§ 1983) and state-law claims, and (d) whether dismissals should have been entered with prejudice or without prejudice.

2. Summary of the Opinion

The Third Circuit affirmed dismissal of both cases and related orders but modified the dismissal judgments to clarify the proper prejudice designation:

  • Affirmed denial/dismissal of Silverberg’s partial summary judgment motions as premature/moot.
  • Affirmed dismissal of claims against the state-court judges and ODC defendants primarily on immunity grounds (judicial immunity; Eleventh Amendment immunity; quasi-judicial immunity) and abstention.
  • Affirmed dismissal of many conspiracy allegations as too conclusory under federal pleading standards.
  • Affirmed dismissal of remaining claims on the merits (failure to state a claim) and, for some challenges to the tax judgments, for lack of subject-matter jurisdiction under Rooker-Feldman.
  • Applied Younger abstention to bar federal interference with ongoing attorney disciplinary proceedings; held that dismissal with prejudice was required for those abstained-from claims under circuit law.
  • Modified the District Court’s “with prejudice” dismissals so that any claims dismissed for Rooker-Feldman (lack of subject-matter jurisdiction) or on Eleventh Amendment immunity grounds were dismissed without prejudice.

Although the panel emphasized the opinion was nonprecedential, its reasoning operationalizes an important remedial point: federal courts must label certain dismissals “without prejudice” when they lack adjudicatory power, even if the plaintiff’s litigation conduct is abusive or repetitive.

3. Analysis

3.1. Precedents Cited

A. Pleading standards and summary judgment timing

  • Phillips v. Cnty. of Allegheny, 515 F.3d 224 (3d Cir. 2008): Used for the standard of accepting well-pleaded allegations as true on dismissal and reading them in the plaintiff’s favor.
  • Doe v. Abington Friends Sch., 480 F.3d 252 (3d Cir. 2007): Supported the ruling that a district court may deny summary judgment when discovery is materially incomplete; the panel used it to affirm denial of Silverberg’s premature partial summary judgment motion.
  • Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007): The backbone for rejecting conclusory “proxy war” conspiracy allegations lacking factual linkage between defendants and the City’s tax-collection actions.

    • B. Appellate review and affirmance on any ground

    • United States v. Safehouse, 146 F.4th 315 (3d Cir. 2025): Cited for plenary review of dismissal orders.
    • Lazaridis v. Wehmer, 591 F.3d 666 (3d Cir. 2010): Cited both for the review of Rooker-Feldman/Younger and for the principle that the appellate court may affirm on any basis supported by the record.
    • Petruska v. Gannon Univ., 462 F.3d 294 (3d Cir. 2006): Noted for the overlap in standards applied to facial Rule 12(b)(1) and Rule 12(b)(6) dismissals.

    C. Rooker-Feldman jurisdictional limits

    • Allen v. DeBello, 861 F.3d 433 (3d Cir. 2017), and Great W. Mining & Min. Co. v. Fox Rothschild LLP, 615 F.3d 159 (3d Cir. 2010): Provided the four-part framework for identifying a forbidden de facto appeal of state-court judgments.
    • Silverberg v. City of Philadelphia, 847 F. App’x 152 (3d Cir. 2021) (non-precedential): The panel referenced this earlier dismissal to contextualize the repetitive nature of Silverberg’s efforts to relitigate or nullify tax judgments; it also informed the District Court’s frustration, though not the panel’s prejudice modification rule.
    • Merritts v. Richards, 62 F.4th 764 (3d Cir. 2023): Used to underscore that arguing the City is not entitled to collect on existing judgments would require federal review/rejection of those judgments—exactly what Rooker-Feldman prohibits; also cited later for the “without prejudice” requirement for jurisdictional dismissals.

    D. Immunities for judges and disciplinary authorities

    • Capogrosso v. Sup. Ct. of New Jersey, 588 F.3d 180 (3d Cir. 2009): Central authority for treating disciplinary counsel entities as arms of the state judiciary entitled to Eleventh Amendment immunity, and for extending immunity to employees in official-capacity damages claims and quasi-judicial immunity for certain individual-capacity claims seeking injunctive/declaratory relief.
    • Azubuko v. Royal, 443 F.3d 302 (3d Cir. 2006): Supported absolute judicial immunity for actions taken in a judicial capacity (here, state tax-case rulings by Judges Anders and Roberts).

    E. RICO predicate-act analysis

    • United States v. Manzo, 636 F.3d 56 (3d Cir. 2011): Informed the panel’s conclusion that collection of money “due” to the City under judgments is not extortion “under color of official right.”
    • Fischer v. United States, 603 U.S. 480 (2024): Used to narrow § 1512(c) to impairment of records/documents/objects used in an official proceeding, defeating Silverberg’s broad obstruction theory.
    • United States v. Pierce, 224 F.3d 158 (2d Cir. 2000): Cited for the proposition that deception without interference with a property right is not “fraud” for mail/wire fraud purposes.
    • Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153 (3d Cir. 1993): Established that a RICO conspiracy claim fails when the underlying RICO claim is not adequately pleaded.

    F. First Amendment retaliation and due process

    • Ambrose v. Twp. of Robinson, 303 F.3d 488 (3d Cir. 2002): The decisionmakers must be aware of the protected activity; this defeated Silverberg’s “book suppression” theory because he did not plead City-defendant knowledge of his threatened publication.
    • Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259 (3d Cir. 2007): Used to reject the inference that a settlement demand (release of claims) constitutes retaliation; the panel treated it as ordinary negotiation.
    • Kane v. Barger, 902 F.3d 185 (3d Cir. 2018): Supplied the “shocks the conscience” standard for substantive due process, which routine judgment-collection activity did not meet.
    • Berne Corp. v. Gov’t of the Virgin Islands, 570 F.3d 130 (3d Cir. 2009): Supported rejection of procedural due process claims absent allegations that required procedures were denied.

    G. State-law tort and pleading authorities

    • Gen. Refractories Co. v. Fireman’s Fund Ins. Co., 337 F.3d 297 (3d Cir. 2003): Informed the abuse-of-process standard; legitimate enforcement litigation does not become tortious absent misuse so unjustified it loses legitimate function.
    • Frederico v. Home Depot, 507 F.3d 188 (3d Cir. 2007): Applied Rule 9(b) particularity to common-law fraud, defeating generalized accusations.
    • Acumed LLC v. Advanced Surgical Servs., Inc., 561 F.3d 199 (3d Cir. 2009), and Restatement (Second) of Torts § 767 cmts. b, c (A.L.I. 1979): Supported dismissal of tortious interference where defendants acted with privilege/justification (enforcing judgments).
    • Universal Premium Acceptance Corp. v. York Bank & Tr. Co., 69 F.3d 695 (3d Cir. 1995): Supported conversion’s “without legal justification” requirement—again undermined by lawful judgment enforcement.
    • Hoy v. Angelone, 720 A.2d 745 (Pa. 1998): Provided the high bar for intentional infliction of emotional distress; ordinary collection efforts are not “utterly intolerable.”
    • Boyanowski v. Cap. Area Intermediate Unit, 215 F.3d 396 (3d Cir. 2000): Conspiracy fails where underlying substantive claims fail.

    H. Younger abstention and exceptions

    • Younger v. Harris, 401 U.S. 37 (1971), and Borowski v. Kean Univ., 68 F.4th 844 (3d Cir. 2023): Provided the modern three-part test for abstention from interfering with ongoing state judicial proceedings implicating important state interests.
    • Addiction Specialists, Inc. v. Twp. of Hampton, 411 F.3d 399 (3d Cir. 2005), abrogated on other grounds by Spring Commc’ns, Inc. v. Jacobs, 571 U.S. 69 (2013): Used to treat proceedings as “ongoing” if pending when the federal complaint is filed.
    • Juidice v. Vail, 430 U.S. 327 (1977), and Klayman v. Porter, 104 F.4th 298 (D.C. Cir. 2024): Used to reject the “bad faith” exception where the record (as pleaded) did not support it.
    • Lui v. Comm’n, Adult Ent., 369 F.3d 319 (3d Cir. 2004): Cited for the proposition that, when Younger abstention applies, dismissal with prejudice is required (in this circuit’s approach).

    I. “With prejudice” vs “without prejudice” when power is lacking

    • Associated Builders & Contractors W. Pa. v. Cmty. Coll. of Allegheny Cnty., 81 F.4th 279 (3d Cir. 2023), and Merritts v. Richards, 62 F.4th 764 (3d Cir. 2023): Anchored the key remedial modification: dismissals for lack of subject-matter jurisdiction (Rooker-Feldman) and on Eleventh Amendment immunity grounds must be without prejudice.

    3.2. Legal Reasoning

    A. The court separated “power” problems from “merits” problems

    The opinion’s architecture matters. The panel treated several categories of defenses as threshold barriers:

    • Rooker-Feldman (no federal jurisdiction to review/reject state-court judgments).
    • Eleventh Amendment immunity (no federal-court power over certain state entities/official-capacity claims).
    • Judicial immunity and quasi-judicial immunity (absolute immunity for particular actors/functions).
    • Younger abstention (federal noninterference with ongoing state disciplinary proceedings).

    Only after clearing those did the panel address whether remaining allegations stated claims under RICO, § 1983, and state tort law, concluding they did not—primarily because the pleaded “proxy war” lacked plausible factual linkage and because routine tax judgment enforcement does not fit the criminal predicates or constitutional tort theories alleged.

    B. RICO: enforcement of judgments is not racketeering on these pleadings

    Civil RICO requires at least two plausible predicate acts. The panel held none were plausibly pleaded:

    • Extortion (18 U.S.C. § 1951): The City’s collection of court-entered tax judgments sought money “due,” defeating the “under color of official right” theory under United States v. Manzo.
    • Witness tampering (18 U.S.C. § 1512): The complaint did not allege interference with testimony/evidence or impairment of records as required, especially under Fischer v. United States.
    • Obstruction of justice (18 U.S.C. § 1503): The statute targets obstruction of federal proceedings, not the cited state tax cases.
    • Mail/wire fraud (18 U.S.C. §§ 1341, 1343): A campaign to deter speech (the book) was not, as pleaded, a scheme to deprive Silverberg of money/property; and to the extent he reframed it as fraud about tax liabilities, the court treated that as implicating Rooker-Feldman because it would require undermining the state judgments.

    With the substantive RICO claim dismissed, the RICO conspiracy claim fell under Lightning Lube, Inc. v. Witco Corp..

    C. § 1983: retaliation requires knowledge; settlement terms are not retaliation by themselves

    For First Amendment retaliation, protected activity must be a substantial/motivating factor, which requires defendant awareness. Under Ambrose v. Twp. of Robinson, Silverberg’s theory failed because he did not plausibly allege City defendants knew of his threatened book.

    His alternative retaliation theory (punishment for filing prior federal suits) relied heavily on a settlement condition requiring a release of claims. The court—using Lauren W. ex rel. Jean W. v. DeFlaminis—treated that as conventional litigation negotiation, not an indicator of retaliatory motive.

    Due process claims failed because the enforcement conduct did not “shock the conscience” (Kane v. Barger) and because the complaint did not allege denial of procedural protections typically required in enforcement contexts (Berne Corp. v. Gov’t of the Virgin Islands).

    D. State-law torts: judgment collection supplied justification/privilege

    Across abuse of process, conversion, tortious interference, and IIED, the panel emphasized that enforcement actions taken pursuant to existing judgments are presumptively justified and are not transformed into torts by conclusory allegations of improper motive. The court also invoked heightened pleading for fraud under Rule 9(b) (Frederico v. Home Depot).

    E. Disciplinary proceedings: Younger abstention, no pleaded bad-faith exception

    Because attorney discipline proceedings were ongoing and implicate core state interests in regulating the legal profession, the panel held abstention appropriate. Silverberg’s attempt to invoke the “bad faith” exception failed because the cited bad-faith facts were not pleaded in the operative complaint, and the record did not support that exception (Juidice v. Vail). For these abstained-from claims, the panel stated dismissal with prejudice was required under Lui v. Comm’n, Adult Ent..

    F. The key remedial clarification: some dismissals cannot be “with prejudice”

    The District Court had dismissed with prejudice in both cases, citing repeated filings and burdensome motion practice. The Third Circuit agreed that many claims warranted dismissal with prejudice on the merits, but it drew a bright procedural line:

    • Where dismissal is for lack of subject-matter jurisdiction under Rooker-Feldman, it must be without prejudice.
    • Where dismissal rests on Eleventh Amendment immunity, it likewise must be without prejudice.

    Relying on Associated Builders & Contractors W. Pa. v. Cmty. Coll. of Allegheny Cnty. and Merritts v. Richards, the panel modified the judgments accordingly. This serves as the opinion’s most “rule-like” contribution: a court cannot give claim-preclusive effect (via “with prejudice”) to claims it had no power to adjudicate.

    3.3. Impact

    • Prejudice labeling discipline: Even in repetitive, vexatious litigation, district courts must carefully tailor the prejudice designation to the basis of dismissal. Jurisdictional and Eleventh Amendment dismissals remain “without prejudice,” while merits dismissals may be “with prejudice.”
    • Conspiracy pleading in multi-defendant cases: The decision reinforces that “information and belief” allegations of a sprawling conspiracy—without concrete facts linking defendants to specific acts—will fail under Twombly/Iqbal, particularly where discovery would otherwise be used as a fishing expedition.
    • RICO restraint in civil disputes: The panel’s predicate-act analysis illustrates a recurring boundary: aggressive or even arguably unfair litigation/collection tactics generally do not become RICO unless the conduct actually fits the elements of qualifying crimes.
    • Federal noninterference with attorney discipline: The opinion underscores the strength of Younger in the attorney-regulation context, and the importance of pleading any “bad faith” exception facts in the complaint itself.

    4. Complex Concepts Simplified

    • Rooker-Feldman doctrine: Federal district courts cannot function as appellate courts to review and overturn state-court judgments. If the injury you complain about is essentially “the state court ruled against me,” the federal court lacks jurisdiction.
    • Eleventh Amendment immunity: States and certain “arms of the state” generally cannot be sued in federal court without consent. This is a power limitation, not a decision that the plaintiff’s factual allegations are false.
    • Judicial immunity: Judges are absolutely immune from civil suits for damages for acts performed in their judicial role (e.g., rulings, orders), even if the judge allegedly acted wrongly.
    • Quasi-judicial immunity: Officials performing functions closely tied to adjudication (such as disciplinary counsel in prosecutorial/adjudicative roles) can receive immunity similar to judges.
    • Younger abstention: Even if a federal court has jurisdiction, it may (and often must) refrain from interfering with certain ongoing state proceedings—especially those involving important state interests—leaving federal issues to be raised within the state process.
    • “With prejudice” vs “without prejudice”: “With prejudice” generally ends the claim permanently in that court system (claim-preclusive effect). “Without prejudice” means the claim was not decided on the merits and may be brought again if a proper forum exists. If a court lacks power to decide, it should not foreclose future litigation by using “with prejudice.”
    • Rule 9(b): Fraud must be pleaded with particularity—who said what, when, where, and why it was fraudulent—rather than broad assertions that “defendants committed fraud.”

    5. Conclusion

    The Third Circuit largely agreed with the District Court that Silverberg’s “proxy war” complaints did not plausibly connect many defendants to actionable misconduct and that his federal and state theories failed under established doctrine (RICO predicates, § 1983 retaliation/knowledge, due process standards, and state tort elements). It also reaffirmed strong barriers to federal intervention in state attorney discipline via Younger and protected judges and disciplinary actors through immunity doctrines.

    The opinion’s most practically significant takeaway is remedial and procedural: dismissals grounded in Rooker-Feldman and the Eleventh Amendment must be entered without prejudice, regardless of a plaintiff’s persistence or litigation conduct. That clarification preserves the conceptual boundary between (i) dismissals that reflect a court’s lack of adjudicatory authority and (ii) dismissals that resolve the merits and can properly carry claim-preclusive consequences.