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Case 1:19-cv-00143-SM Document 19 Filed 05/06/19 Page 1 of 4

Paul J. Maravelias, se
34 Mockingbird Hill Rd
Windham,NH 03087
(603)475-3305
paul@paulmarv.com 2013 HAY-b A 10= 2^

UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF NEW HAMPSHIRE

PAUL MARAVELIAS,
Plaintiff',
V.
Civil No. 1:19-CV-143(SM)

JOHN J. COUGHLIN,in his individual and JURY TRIAL DEMANDED


official capacities, GORDON J. MACDONALD,
in his official capacity as Attorney General of
New Hampshire,PATRICIA G. CONWAY,in
her official capacity as Rockingham County
Attorney, TOWN OF WINDHAM,ex rel.
WINDHAM POLICE DEPARTMENT,and
GERALD S. LEWIS,in his official capacity as
PLAINTIFF^S OPPOSITION TO
Chief of Police.
DEFENDANTS'JOINT F.R.C.P
Defendants.
llfbim MOTION TO DISMISS

NOW COMES Paul Maravelias ("Plaintiff) and respectfully submits the within

Objection to Defendants' Motion to Dismiss.' In support thereof. Plaintiff states as follows:

1. All Defendants have joined in Defendant Gordon J. MacDonald's 4/17/19

Motion to Dismiss this case for lack ofsubject matter jurisdiction pursuant to FRCP 12(b)(1)

'The instant pleading is timely filed on or before 5/6/19 as service of all opposing motions upon
Plaintiff was made by "mail" pmsuant to FRCP 5(b)(2)(C) triggering three(3)additional days
pursuant to FRCP 6(d) and,thenceforth, another continuation from Saturday 5/4/19 to 5/6/19
pursuant to FRCP 6(a)(1)(C) and LR 6.1.

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PAUL MARAVELIAS - 34 MOCKINGBIRD HILL RD, WINDHAM,NH 03087
Case 1:19-cv-00143-SM Document 19 Filed 05/06/19 Page 2 of 4

under the Rooker-Feldman doctrine. Additionally, Defendant John J. Coughlin and the

Windham Defendants have submitted individual motions to dismiss to which Plaintiff is

responding separately.

2. The Motion to Dismiss is mooted by Plaintiffs 5/6/19 Amended Complaint,

filed today as a matter ofcourse pursuant to FRCP 15(a)(1)(B).

3. Accordingly, the Court should deny the pending motions to dismiss as MOOT

and invite Defendants to renew said motions, if desired, in the responsive context ofthe

Amended Complaint."[A]s a general proposition, if a defendant files a Motion to Dismiss,

and the plaintiff later files an Amended Complaint, the amended pleading renders the

defendant's Motion to Dismiss moot." Onyiah v. St. Cloud State University,655 F. Supp. 2d

948(D. Minn. 2009)See also Ideal Instruments, Inc. v. Rivard Instruments, Inc., 434 F. Supp.

2d 640,646(N.D.Iowa 2006); Standard Chlorine ofDel,Inc. v. Sinibaldi, 821 F. Supp. 232,

239(D. Del. 1992)(holding that an amended complaint renders a motion to dismiss the

original complaint moot)."[A]n amended complaint supersedes the original one rendering the

original complaint null and void." Vadas v. U.S., 527 F.3d 16, 19(2"'' Cir. 2007). See also

Pintando v. Miami-Bade Hous. Agency,501 F.3d 1241, 1243(11"* Cir. 2007)."Since the

amended complaint replaces the original complaint,the motions to dismiss the original

complaint are moot." Weiss v. Astella Pharma US, Inc., No. 5:05cv527, 2006 WL 1285406, at

*1 n. 1 (E.D. Ky. May 10,2006)(motions to dismiss the original complaint were moot

following amendment of complaint), inter plurima alia.

4. The Amended Complaint contains new factual allegations to illuminate the

inapplicability ofRooker-Feldman to this case. If Defendants nevertheless wish to renew their

FRCP 12(b)(1) motion to dismiss under said doctrine, they ought to do so in a manner

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PAUL MARAVELIAS - 34 MOCKINGBIRD HILL RD, WINDHAM,NH 03087
Case 1:19-cv-00143-SM Document 19 Filed 05/06/19 Page 3 of 4

responsive to the Amended Complaint. See RockwellInt'l Corp. v. United States, 549 U.S.

457,473-74(2007)("when a plaintifffiles a complaint in federal court and then volimtarily

amends the complaint, courts look to the amended complaint to determine jurisdiction").

5. Denying-as-moot the pending motions to dismiss also furthers judicial economy,

since the Amended Complaint likely narrows the arguments Defendants could renew for

dismissal. This avoids urmecessary adjudication ofissues. See e.g. In re K-Dur Antitrust

Litig.,-33S F. Supp. 2d 517,528 (D.N.J. 2004)(granting Rule 15 leave to amend before

adjudicating Rule 12 motion,for judicial efficiency).

6. While the Court may apply an earlier motion to dismiss to an amended

complaint if said complaint contains the same legal flaw as the original,^ the new portions of

the Amended Complaint here are pointedly responsive to Defendants' arguments vmder the

Rooker-Feldman doctrine.

7. Plaintiff anticipates that Defendants might renew the joint motion to dismiss

even notwithstanding the Amended Complaint. Plaintiffis compiling his forthcoming

memorandum oflaw in opposition to said anticipated renewed motion to dismiss, devoting

intensive analysis to the inapplicability ofRooker-Feldman to this case. It would impose

undue burden upon Plaintiffif compelled pointlessly to furnish a full legal memorandum on

this issue before any non-moot motion to dismiss has been filed, especially as Plaintiff

appears pro se and works a full-time occupation. Should Defendants renew their motion(s)to

dismiss. Plaintiff will have 14 days pursuant to the Court's rules to file a follow-up Objection.

See e.g. Cureton v. U.S. Marshal Serv., 322 F. Supp. 2d 23,25 n.6(D.D.C. 2004)

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PAUL MARAVELIAS - 34 MOCKINGBIRD HILL RD, WINDHAM,NH 03087
Case 1:19-cv-00143-SM Document 19 Filed 05/06/19 Page 4 of 4

8. No separate memorandum oflaw is required in support ofthis objection as all

relevant legal authority relied upon is cited herein. See LR 7.1(a)(2).

WHEREFORE,PlaintiffPaul Maravelias respectfully requests this Honorable Court:

I. Deny all Defendants' pending motions to dismiss as MOOT in light of


Plaintiffs 5/6/19 Amended Complaint, without prejudice to Defendants'
ability to renew said motion(s); and
II. Grant any further relief as may be deemed just and proper.

Dated: May 6*^ 2019

Respectfully submitted,

PAUL J. MARAVELIAS,

in propria persona

/s/ Paul J. Maravelias. pro se


Paul J. Maravelias
34 Mockingbird Hill Rd
Windham,NH 03087
paul@paulmarv.com
603-475-3305

CERTIFICATE OF SERVICE

I, Paul Maravelias, certify that a timely provided copy ofthis document is being sent on
this date to all counsel ofrecord for the Defendants pursuant to the rules ofthis Court.

/s/ Paul J. Maravelias Dated: May 6"^, 2019


Paul J. Maravelias

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PAUL MARAVELIAS - 34 MOCKINGBIRD HILL RD, WINDHAM,NH 03087
Case 1:19-cv-00143-SM Document 21 Filed 05/06/19 Page 1 of 5

Paul J. Maravelias,/?ro se
34 Mockingbird Hill Rd
Windham,NH 03087
(603)475-3305
paul@paulmarv.com 2019 HAY -b A iO: 21

UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF NEW HAMPSHIRE

PAUL MARAVELIAS,
Plaintiff,
V.
Civil No. 1:19-CV-143(SM)

JOHN J. COUGHLIN,in his individual and JURY TRIAL DEMANDED


official capacities, GORDON J. MACDONALD,
in his official capacity as Attorney General of
New Hampshire,PATRICIA G. CONWAY,in
her official capacity as Rockingham County
Attorney, TOWN OF WINDHAM,ex rel
WINDHAM POLICE DEPARTMENT,and
GERALD S. LEWIS,in his official capacity as
PLAINTIFF'S OPPOSITION TO
Chief ofPolice.
THE WINDHAM DEFENDANTS'
Defendants.
MOTION TO DISMISS

NOW COMES Paul Maravelias ("Plaintiff) and respectfully Objects to the Motion to

Dismiss filed by the Town of Windham,ex rel. Windham Police Department, and Gerald S.

Lewis (hereinafter,"Windham Defendants"). In support thereof. Plaintiff states as follows:

I. THE WINDHAM DEFENDANTS'MOTION TO DISMISS IS UNTIMELY


IN VIOLATION OF FRCP 12(b)

1. On 4/26/19, the Windham Defendants filed a Motion to Dismiss joining in

Defendant Gordon J. MacDonald's FRCP 12(b)(1) Motion to Dismiss and separately on the

grounds ofPlaintiffs alleged lack ofstanding. See ECF Doc.#18.

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PAUL MARAVELIAS - 34 MOCKINGBIRD HILL RD, WINDHAM,NH 03087
Case 1:19-cv-00143-SM Document 21 Filed 05/06/19 Page 2 of 5

2. Previously, on 4/16/19, the Windham Defendants had submitted an Answer and

Brief Statement of Defenses in response to the Original Complaint. See ECF Doc.#8.

3. A Rule 12(b) Motion filed after the Answer is untimely. Jones v. Greninger, 188

F.3d 322, 326 (5'** Cir. 1999). The Windham Defendants' motion asserts the Rule 12(b)(1)

defense oflack ofsubject matter jurisdiction. However,"[a] motion asserting any ofthese

defenses must be made before pleading if a responsive pleading is allowed." Fed. R. ofCiv.

Proa., 12(b). For tMs reason alone, the untimely Motion should be denied.^'

II. THE MOTION TO DISMISS IS MOOT

4. Regardless, Windham Defendants' Motion to Dismiss is mooted by Plaintiffs

5/6/19 Amended Complaint,filed today as a matter ofcourse pursuant to FRCP 15(a)(1)(B).

5. The facts alleged in Plaintiffs 5/6/19 Amended Complaint are responsive to

said flawed assertion that Plaintiff lacks Article III standing. If Windham Defendants maintain

this argument,they may renew the Motion to Dismiss in response to the Amended Complaint.

6. In further support. Plaintiffincorporates by reference and fully repeats his 5/6/19

"Opposition to Defendants' Joint FRCP 12(b)(1) Motion to Dismiss" filed herewith.

III. PLAINTIFF DOES NOT LACK STANDING WITH RESPECT TO THE


WINDHAM DEFENDANTS

7. The Windham Defendants' absence-of-standing argument lacks any merit even

in conjunction with the Original Complaint, now a nullity. Standing is a core component of

Article Ill's case-and-controversy limitation. Lujan v. Defenders of Wildlife, 504 U.S. 555,

'Plaintiff hereby notices and preserves his right to move for sanctions, if necessary, against the
Windham Defendants under FRCP 11(b)in connection with the purposes imderlying their act of
filing an untimely Rule 12(b) Motion.

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PAUL MARAVELIAS - 34 MOCKINGBIRD HILL RD, WINDHAM,NH 03087
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560(1992)(citation omitted). "Article III standing imposes three fairly strict requirements."

People to End Homelessness, Inc. v. Develco Singles Apartments Assocs., 339 F.3d 1, 8(P'

Cir. 2003)."The Supreme Court has explained that the 'irreducible constitutional minimum'

ofstanding under Article III consists ofthree elements: an actual or imminent injury,

causation, and redressability." Hollywood Mobile Estates Ltd. v. Seminole Tribe ofFla., 641

F.3d 1259,1265(1 Cir. 2011)(citing Lujan, 504 U.S. at 560-61).

8^. Here, the Windham Defendants challenge only the first element: the existence of

an actual or imminent injury. Plaintiffs Original Complaint doubtlessly alleges the "real and

immediate" threat of unlawful prosecution because it alleges Sgt. Smith will arrest Maravelias

for the lawful, constitutionally protected conduct of violating the "social media possession"

"extended terms" if Sgt. Smith fails to establish the Supreme Court exhibit in question was

not part of an earlier court case. See ECF Doc. #2, Attachment(1),"Declaration in Support",

1(15-31.

9. The Windham Defendants' very Answer reconfirms this imminent, real, and

unabated enforcement threat. See Answer. ECF Doc. #8,1(83, 92,97, 109, 118.

10. While it would not be "sufficiently real and immediate to show an existing

controversy simply because [one] anticipate[s] violating lawful criminal statutes and being

tried for [their] offenses"(emphasis added). City ofLos Angeles v. Lyons,461 U.S. 95(1983),

the threatened enforcement here - as alleged-is not "lawful".^ See generally. Original

Complaint.

^ Not only do Windham Defendants persist in credible threats to violate Maravelias's


constitutional rights through such enforcements, they persist in defiance even ofstate statutory
law — let alone federal constitutional law -to do so. See RSA 633:3-a, I.(c), allowing criminal
enforcement ofsuch civil state court orders only where a person "engages in a single act of

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PAUL MARAVELIAS - 34 MOCKINGBIRD HILL RD,WINDHAM,NH 03087
Case 1:19-cv-00143-SM Document 21 Filed 05/06/19 Page 4 of 5

11. Accordingly, the Windham Defendants' entire argument is predicated upon a

favorable adjudication ofthe legal merits ofthis action (to wit, that the threatened

enforcement is "lawful") and is thus misplaced for purposes ofa Rule 12(b) Motion to

Dismiss."If... law enforcement personnel cannot be proceeded against for declaratory relief,

putative plaintiffs would have to await the institution ofstate [criminal] proceedings against

them in order to assert their federal constitutional claims. This is not the way the law has

developed". Supreme Court of Virginia v. Consumers.Union,446 U.S. 719(1980).

12. Here, Maravelias alleges that an unconstitutional application of a state statute

(against which he also brings a facial challenge)is currently chilling his First-Amendment-

protected expression. See Original Complaint.^40-43,46-58. Cf. O'Shea v. Littleton, 414

U.S. 488(1974), a distinguishable suit which held that no justiciable case or controversy

existed "in the absence of allegations that unconstitutional [statutes][were] being employed to

deter constitutionally protected conduct"(emphasis added) unlike this case, and where

"respondents [had] not pointed to any imminent prosecutions contemplated against them"

(emphasis added), also unlike the instant case.

13. Accordingly, since the Court's present inquiry is not factual and must "accept

well-pled factual averments as true, and draw all reasonable inferences in favor ofthe

[plaintiff]", Rubin v. Smith, 817 F. Supp. 987(D.N.H. 1993), the Windham Defendants' Rule

12(b)(1) Motion to Dismiss for lack ofstanding fails as a matter oflaw.

conduct that both violates the provisions ofthe order and is listed in paragraph 11(a)".(Emphasis
added)."Possession" appears nowhere in the enumerations of RSA 633:3-a, 11(a), an exclusive
listing for purposes ofthe criminal enforcement statute. Plaintiffs Amended Complaint more
fully develops this facet of Defendant's real and immediate threats in excess oflegal authority.

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PAUL MARAVELIAS - 34 MOCKINGBIRD HILL RD, WINDHAM,NH 03087
Case 1:19-cv-00143-SM Document 21 Filed 05/06/19 Page 5 of 5

14. No separate memorandum oflaw is required in support ofthis objection as all

relevant legal authority relied upon is cited herein. See LR 7.1(a)(2).

WHEREFORE,PlaintiffPaul Maravelias respectfully requests this Honorable Court:

I. Deny the Windham Defendants' Motion to Dismiss; and


II. Grant any further relief as may be deemed just and proper.

Dated: May 6^2019

Respectfully submitted,

PAUL J. MARAVELIAS,

in propria persona

/s/ Paul J. Maravelias. pro se


Paul J. Maravelias
34 Mockingbird Hill Rd
Windham,NH 03087
paul@paulmarv.com
603-475-3305

CERTIFICATE OF SERVICE

I, Paul Maravelias, certify that a timely provided copy ofthis document is being sent on
this date to all counsel ofrecord for the Defendants pursuant to the rules ofthis Court.

/s/ Paul J. Maravelias Dated: May 6^^, 2019


Paul J. Maravelias

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PAUL MARAVELIAS - 34 MOCKINGBIRD HILL RD,WINDHAM,NH 03087
Case 1:19-cv-00143-SM Document 20 Filed 05/06/19 Page 1 of 3

Paul J. Maravelias,j!7rc> se
34 Mockingbird Hill Rd
Windham,NH 03087
(603)475-3305 28i3HAY-b A 10 2^
paul@paulmarv.com

UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF NEW HAMPSHIRE

PAUL MARAVELIAS,
Plaintiff,
V.
Civil No. 1:19-CV-143(SM)

JOHN J. COUGHLIN,in his individual and JURY TRIAL DEMANDED


official capacities, GORDON J. MACDONALD,
in his official capacity as Attorney General of
New Hampshire,PATRICIA G. CONWAY,in
her official capacity as Rockingham County
Attorney, TOWN OF WINDHAM,ex rel.
WINDHAM POLICE DEPARTMENT,and
GERALD S. LEWIS,in his official capacity as
PLAINTIFF'S OPPOSITION TO
Chief of Police.
DEFENDANT JOHN J. COUGHLIN'S
Defendants.
MOTION TO DISMISS

NOW COMES Paul Maravelias ("Plaintiff) and respectfully Objects to Defendant

John J. Coughlin's 4/17/19 Motion to Dismiss and,in further support, states as follows:

I. THE MOTION TO DISMISS IS MOOT

1. Defendant John J. Coughlin has filed a Motion to Dismiss. He joins in

Defendant Gordon J. MacDonald's FRCP 12(b)(1) Motion to Dismiss and separately moves

for dismissal under FRCP 12(b)(6) claiming entitlement to absolute judicial immunity.

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PAUL MARAVELIAS - 34 MOCKINGBIRD HILL RD, WINDHAM,NH 03087
Case 1:19-cv-00143-SM Document 20 Filed 05/06/19 Page 2 of 3

2. Defendant Coughlin's Motion to Dismiss is mooted by Plaintiffs 5/6/19

Amended Complaint, filed today as a matter of course pursuant to FRCP 15(a)(1)(B).

3. The facts alleged in Plaintiffs 5/6/19 Amended Complaint are responsive to

said flawed claim to absolute judicial immunity. If Defendant Coughlin maintains this

argument, he may renew the Motion to Dismiss in response to the Amended Complaint.

4. In fiirther support. Plaintiffincorporates by reference and fully repeats his

"Opposition to Defendants' Joint FRCP 12(b)(1) Motion to Dismiss" filed herewith.

II. DEFENDANT COUGHLIN CANNOT CLAIM JUDICIAL IMMUNITY AS


PLAINTIFF ONLY SEEKS DECLARATORY AND INJUNCTIVE RELIEF

5. Besides mootness. Defendant's Motion to Dismiss runs afoul of bedrock federal

law. It is well-established thatjudicial immunity does not extend to claims for declaratory and

injunctive relief under §1983.See Pulliam v. Allen, 466 U.S. 522(1984). The doctrine of

judicial immunity shields against claims for punitive money damages only, which Plaintiff

does not seek in the instant action."[W]e have never held thatjudicial immunity absolutely

insulates judges from declaratory or injunctive relief with respect to their judicial acts."

Supreme Court of Virginia v. Consumers Union,446 U.S. 719(1980).

6. Judicial immimity would not apply even if money damages were,in fact, sought.

A constmction ofthe Original Complaint's allegations in the light most favorable to Plaintiff

reasonably infers that Judge Coughlin acted in complete absence ofjurisdiction through an act

not "judicial" in nature. Plaintiff need not further develop this argument unless and until

Defendant Coughlin renews the Motion to Dismiss in response to the Amended Complaint.

7. No separate memorandum oflaw is required in support ofthis objection as all

relevant legal authority relied upon is cited herein. See LR 7.1(a)(2).

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PAUL MARAVELIAS - 34 MOCKINGBIRD HILL RD, WINDHAM,NH 03087
Case 1:19-cv-00143-SM Document 20 Filed 05/06/19 Page 3 of 3

WHEREFORE,PlaintiffPaul Maravelias respectfully requests this Honorable Court:

I. Deny Defendant John J. Coughlin's Motion to Dismiss as MOOT in light


ofPlaintiffs 5/6/19 Amended Complaint, without prejudice to Defendant's
ability to renew said Motion; and
II. Grant any further relief as may be deemed just and proper.

Dated: May 6"*, 2019 Respectfully submitted,

PAUL J. MARAVELIAS

/s/ Paul J. Maravelias,jpro se


34 Mockingbird Hill Rd
Windham,NH 03087
paul@paulmarv.com
603-475-3305

CERTIFICATE OF SERVICE

I, Paul Maravelias, certify that a timely provided copy ofthis document is being sent on
this date to all counsel of record for the Defendants pursuant to the rules ofthis Court.

/s/ Paul J. Maravelias Dated: May 6"', 2019


Paul J. Maravelias

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PAUL MAILWELIAS - 34 MOCfCINGBIRD HILL RD, WINDHAM,NH 03087

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