Strojnik v. State Bar of Ariz.

446 F.Supp.3d 566

Peter STROJNIK, Plaintiff,

v.STATE BAR OF ARIZONA, et al., Defendants.

No. CV-19-02704-PHX-DJH

United States District Court, D. Arizona.

Signed March 17, 2020

Peter Strojnik, Phoenix, AZ, pro se.

Carrie Ann Laliberte, Lisa Tewksbury Hauser, Bonnett Fairbourn Friedman & Balint PC, Phoenix, AZ, for Defendants State Bar of Arizona, Shauna Miller, Unknown Miller, Maret Vessella, Unknown Vessella.

Lisa Tewksbury Hauser, Bonnett Fairbourn Friedman & Balint PC, Phoenix, AZ, for Defendant Unknown Parties.

ORDER

Diane J. Humetewa, United States District Judge Pending before the Court is a Motion to Dismiss the Second Amended Complaint ("Motion") (Doc. 43) filed by Defendants State Bar of Arizona (the "State Bar"), Shauna Miller ("Ms. Miller") and John Doe Miller, and Maret Vessella ("Ms. Vessella") and John Doe Vessella (collectively "Defendants"). Plaintiff Peter Strojnik ("Plaintiff") filed a Response (Doc. 45),¹ and Defendants filed a Reply (Doc. 48).

I. BACKGROUND

Plaintiff filed his original Complaint on April 29, 2019. (Doc. 1). Plaintiff filed a First Amended Complaint on June 4, 2019 (Doc. 14), and a Second Amended Complaint ("SAC") on July 22, 2019. (Doc. 22). Plaintiff's SAC contains claims for: (1) under 42 U.S.C. § 1981, violations of his "[First] Amendment right of Dissociation," and "right to be free from retaliation, interference, coercion, and/or intimidation pursuant to 42 U.S.C. § 12203 and 28 C.F.R. § 36.203 [ ]"; (2) civil conspiracy; aiding and abetting; tortious interference with contractual relations; abuse of process; and intentional infliction of emotional distress. (Doc. 22). The crux of Plaintiff's SAC is that the State Bar entered into a conspiracy with non-parties Arizona Attorney General Mark Brnovich ("AG Brnovich"), the law firm of Jennings, Strauss & Salmon, and East Mesa Chamber of Commerce ("EMCC") for the sole purpose of preventing "Plaintiff from acting as a private attorney general in the prosecution of Plaintiff's and Plaintiff's clients' civil rights." (Id. ¶ 1).

On March 6, 2018, the State Bar moved for interim suspension of Plaintiff's license in a disciplinary proceeding before the Presiding Disciplinary Judge ("PDJ") William J. O'Neil.² (Doc. 42-2 at 2).³ On July 11, 2018, PDJ O'Neil granted the State Bar's Motion for Interim Suspension and Plaintiff was immediately suspended from the practice of law. (Id. at 18). Plaintiff's disciplinary proceeding was based on his conduct before state and federal courts. Specifically, Plaintiff filed over 1,700 complaints in Arizona state court and over 160 complaints in the Arizona District Court alleging violations of the Americans with Disabilities Act ("ADA") and the Arizonans with Disabilities Act ("AzDA"). (Doc. 42-2). The State Bar alleged that in connection with those cases, Plaintiff had "perpetrated a fraud on the court in claiming millions of dollars in attorney's fees and money damages as part of scheme to make money." (Doc. 42-3 at 5).

Plaintiff proffered his resignation from the State Bar on October 24, 2018. (Doc. 1 at 3). However, because disciplinary proceedings had already been initiated against him, pursuant to Arizona Supreme Court Rule 32(c)(11)(B), Plaintiff was not permitted to resign. On November 16, 2018, the State Bar filed a four-count disciplinary complaint against Plaintiff. (Doc. 42-3). On March 20, 2019, Plaintiff filed a "Motion to Recognize Strojnik's Expressive Dissociation from the [ ] State Bar" in his disciplinary proceeding. (Doc. 42-4). The State Bar responded to Plaintiff's Motion by filing a Motion to Strike. (Doc. 42-5). PDJ O'Neil denied Plaintiff's motion as "legally infirm." (Doc. 42-7 at 10). Shortly thereafter, and before a four-day disciplinary hearing was set to begin, Plaintiff consented to disbarment on May 8, 2019. (Doc. 42-8). On May 10, 2019, PDJ O'Neil entered a Judgment of Disbarment against Plaintiff. (Doc. 42-9).

Defendants move to dismiss Plaintiff's SAC, pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(1) for lack of subject matter jurisdiction. Specifically, Defendants argue that the State Bar has sovereign immunity from suit, and Ms. Miller and Ms. Vessella have prosecutorial immunity from suit. (Doc. 43 at 6).

II. LEGAL STANDARD

A defendant may move to dismiss an action for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). A jurisdictional challenge may be facial or factual. See Safe Air for Everyone v. Meyer , 373 F.3d 1035, 1039 (9th Cir. 2004). Where the attack is facial, the court determines whether the complaint's allegations are sufficient on their face to invoke federal jurisdiction and accepts all material allegations as true and construes them in favor of the party asserting jurisdiction. See Warth v. Seldin , 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). Where the attack is factual, "the court need not presume the truthfulness of the plaintiff's allegations." Safe Air , 373 F.3d at 1039. In resolving a factual dispute regarding subject matter jurisdiction, a court may review extrinsic evidence beyond the complaint without converting a motion to dismiss into one for summary judgment. See id. ; McCarthy v. United States , 850 F.2d 558, 560 (9th Cir. 1988) (holding that a court "may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction").

"[A]lthough sovereign immunity is only quasi-jurisdictional in nature, Rule 12(b)(1) is still a proper vehicle for invoking sovereign immunity from suit." Pistor v. Garcia , 791 F.3d 1104, 1111 (9th Cir. 2015). Thus, once a defendant has asserted sovereign immunity pursuant to Rule 12(b)(1), " ‘the party asserting subject matter jurisdiction has the burden of proving its existence,’ i.e. that immunity does not bar the suit." Id. (quoting Miller v. Wright , 705 F.3d 919, 923 (9th Cir. 2013) ).

III. DISCUSSION

Plaintiff alleges various violations of his rights related to the State Bar's disciplinary actions against him. Defendants argue the Court lacks jurisdiction over all claims against the Arizona State Bar because it is entitled to absolute immunity under the Eleventh Amendment. Plaintiff responds that: (1) the State Bar acted in its private corporate capacity, not as an arm of the Supreme Court, (2) the State of Arizona has waived sovereign immunity, and (3) Congress abrogated Arizona's sovereign immunity under the ADA. Defendants also argue the Court lacks jurisdiction over claims against Ms. Miller and Ms. Vessella because they are both entitled to prosecutorial immunity. Plaintiff contends that Ms. Miller and Ms. Vessella are not entitled to immunity because their conduct was investigative, not prosecutorial. The Court will address each argument in turn.

a. The State Bar's Entitlement to Eleventh Amendment Immunity

The SBA contends that it enjoys immunity from suit under the Eleventh Amendment and therefore it is immune from this suit and this Court's jurisdiction. (Doc. 43 at 4).

The Eleventh Amendment provides:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

U.S. Const. amend. XI. Accordingly, "the Eleventh Amendment bars suits which seek either damages or injunctive relief against a state, an ‘arm of the state,’ its instrumentalities, or its agencies." Franceschi v. Schwartz , 57 F.3d 828, 831 (9th Cir. 1995) ; see also Cleveland v. Pinal County Superior Court , 2012 WL 4932657, at *3 (D. Ariz. Oct. 16, 2012) ("Under the Eleventh Amendment to the Constitution of the United States, neither a state nor its agencies may be sued in federal court without the state's consent.") (citing Pennhurst State Sch. & Hosp. v. Halderman , 465 U.S. 89, 100, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) ). Several federal courts have determined that state bar associations are arms of the state. "A state bar operates as the investigative arm of its state supreme court, and thus, is an agency of the state; as an agency of the state, the Eleventh Amendment renders state bars immune from suit in federal court." Cleveland , 2012 WL 4932657, at *3 (citing Gilchrist v. Arizona Supreme Court , 10 Fed. Appx. 468, 470 (9th Cir. 2001) ); see also O'Connor v. State of Nev. , 686 F.2d 749, 750 (9th Cir. 1982).

Thus, the Court lacks subject matter jurisdiction to adjudicate claims brought against the State Bar unless an exception applies. Specifically, the Court may retain subject matter jurisdiction where: (1) Congress has abrogated that immunity pursuant to its lawmaking powers conferred by the United States Constitution, Kimel v. Fla. Bd. of Regents , 528 U.S. 62, 80, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000) ; (2) a state has waived its Eleventh Amendment immunity by consenting to suit, College Sav. Bank Florida v. Prepaid Postsecondary Educ. Expense Bd. , 527 U.S. 666, 670, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999) ; or (3) the plaintiff sues a state official in his or her official capacity for prospective injunctive relief under the Ex parte Young doctrine, Seminole Tribe of Fla. v. Florida , 517 U.S. 44, 73, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996).

1. The State Bar is an Arm of the State

First, Plaintiff's argument that the State Bar is not entitled to Eleventh Amendment immunity because it is a non-profit organization lacks merit. (Doc. 45 at 6). Moreover, Plaintiff cites no authority to support his argument. In determining whether an entity is an arm of the state, federal courts look to "the way state law treats the entity." Mitchell v. Los Angeles Community College District , 861 F.2d 198, 201 (9th Cir. 1988) (finding that the court should look to state law to determine whether a community college was an arm of the state or was an independent entity not entitled to Eleventh Amendment immunity), cert. denied , 490 U.S. 1081, 109 S.Ct. 2102, 104...