Eugster v. Littlewood et al, No. 2:2015cv00352 - Document 19 (E.D. Wash. 2016)
Court Description: ORDER granting 16 Defendants' Motion to Dismiss. Plaintiff's claims are dismissed with prejudice. The file is CLOSED. Signed by Chief Judge Thomas O. Rice. (BF, Paralegal)
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1 2 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 STEPHEN KERR EUGSTER, NO: 2:15-CV-0352-TOR 8 9 10 11 12 13 14 Plaintiff, ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS v. PAULA LITTLEWOOD, Executive Director, Washington State Bar Association (WSBA), in her official capacity; DOUGLAS J. ENDE, Director of the WSBA Office of Disciplinary Counsel, in his official capacity; Francesca D’Angelo, Disciplinary Counsel, WSBA Office of Disciplinary Counsel, in her official capacity, 15 Defendants. 16 17 BEFORE THE COURT is Defendants’ Motion to Dismiss (ECF No. 16). 18 This matter was submitted for consideration without oral argument. Plaintiff, a 19 licensed attorney in the state of Washington, is proceeding pro se. Defendants are 20 represented by Paul J. Lawrence, Jessica A. Skelton, and Taki V. Flevaris. The ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS ~ 1 1 Court—having reviewed the briefing, the record, and files therein—is fully 2 informed. 3 4 BACKGROUND On December 22, 2015, Plaintiff filed suit against Defendants, officials of 5 the Washington State Bar Association (“WSBA”), alleging violation of his 6 constitutional rights. ECF No. 1; see ECF No. 8 (amended complaint). Plaintiff’s 7 “Amended and Restated Complaint for Declaratory Relief and Injunction” asserts 8 violations of his civil rights as “protected by 42 U.S.C. § 1983, the First and Fifth 9 Amendments to the United States Constitution, and Washington State Constitution 10 Art. I, Section 1 and Section 2.” ECF No. 8 at 2. Specifically, Counts One and 11 Two of the amended complaint seek a declaratory judgment that the WSBA 12 Washington Lawyer System is unconstitutional because the Discipline System (1) 13 “Does Not Pass Strict Scrutiny;” see id. at ¶¶ 160-73, and (2) “violates procedural 14 due process,” see id. at ¶¶ 174-89. Additionally, Count Three seeks to enjoin 15 Defendants “from using the WSBA Lawyer Discipline System” against Plaintiff. 16 See id. at ¶¶ 190-91. 17 Defendants’ motion asserts Plaintiff’s claims should be dismissed (1) due to 18 a lack of standing; (2) pursuant to the doctrine of res judicata; and (3) for failure to 19 state a claim upon which relief can be granted. ECF No. 16 at 2. Defendants 20 further argue that the Court should dismiss Plaintiff’s entire complaint under the ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS ~ 2 1 Younger abstention doctrine to avoid interference with ongoing bar proceedings 2 against Plaintiff. See id. at 17-20. FACTS1 3 4 Plaintiff is a licensed attorney and has been a member of the WSBA since 5 1970. ECF No. 8 at ¶ 17. Defendants are employed by the WSBA. Id. at ¶ 12. 6 Specifically, Paula Littlewood is the Executive Director; Douglas Ende is Chief 7 Disciplinary Counsel; and Francesca D’Angelo is Disciplinary Counsel. Id. at ¶¶ 8 13-15. 9 There are a number of prior cases between Plaintiff and the WSBA and its 10 officers. The first appears to have occurred in 2005 when the WSBA charged 11 Plaintiff with numerous counts of attorney misconduct. See In re Disciplinary 12 Proceeding Against Eugster, 166 Wash.2d 293, 307 (2009). The WSBA 13 Disciplinary Board unanimously recommended Plaintiff be disbarred, id. at 311, 14 15 16 1 The following facts are principally drawn from Plaintiff’s amended complaint 17 (ECF No. 8), as well as the matters of judicial notice and materials incorporated by 18 reference and attached for this Court’s review by Defendants, and are accepted as 19 true for the instant motion. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 20 (2007); United States v. Ritchie, 342 F.3d 903, 907-908 (9th Cir. 2003). ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS ~ 3 1 but, in June 2009, five justices of the Washington Supreme Court decided instead 2 to suspend Plaintiff from the practice of law for 18 months. Id. at 327-28. 3 In May 2006, in an unrelated matter, another WSBA grievance was filed 4 against Plaintiff. See E.D. Wash, Case No. 2:09-CV-0357-SMM, ECF No. 30 at 2. 5 After the Washington Supreme Court entered its June 2009 decision in the other 6 matter described above, the WSBA conducted an investigation and on December 7 21, 2009, dismissed the May 2006 grievance. Id. 8 9 In the meantime, on December 2, 2009, Plaintiff filed suit against the WSBA, WSBA Board of Governors, and Washington Supreme Court Justices, 10 alleging that the WSBA’s attorney discipline system as it stands, and as applied, 11 violates Plaintiff’s due process rights under the Fifth and Fourteenth Amendments. 12 E.D. Wash, Case No. 2:09-CV-0357-SMM, ECF No. 1. The district court 13 dismissed the matter after finding Plaintiff lacked Article III standing. Id., ECF 14 No. 30 at 18. The Ninth Circuit affirmed. Eugster v. Washington State Bar Ass’n, 15 474 Fed. App’x 624 (9th Cir. 2012). 16 On September 23, 2014, another WSBA grievance was filed against 17 Plaintiff. ECF No. 8 at ¶ 123. This grievance was filed by Cheryl Rampley, the 18 niece-in-law of a client who retained Plaintiff two weeks prior. Id. at ¶¶ 122-23. 19 20 ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS ~ 4 1 On November 21, 2014, Plaintiff alleges he received a letter from Kevin 2 Bank, Managing Disciplinary Counsel, stating he had “been assigned to complete 3 this investigation,” regarding the Rampley grievance. Id. at ¶ 127. 4 On March 12, 2015, Plaintiff filed another lawsuit against the WSBA, 5 various officers, and the justices of the Washington Supreme Court, this time in the 6 Western District of Washington. See W.D. Wash., Case No. 2:15-CV-0375-JLR, 7 ECF No. 1. Plaintiff claims the subject of this action concerned whether his 8 “fundamental right not to associate was being violated by his compelled 9 membership in the WSBA and [his] freedom of speech rights were being violated 10 by his compelled dues to the WSBA.” ECF No. 8 at ¶ 135. 11 Plaintiff alleges Defendants were aware of the commencement of this 12 lawsuit. Id. at ¶¶ 138-39. Plaintiff further alleges that “[s]hortly after the filing of 13 the complaint, on April 3, 2015, Vanessa Norman, an investigator for the WSBA, 14 informed Plaintiff that she had been assigned to investigate the [Rampley] 15 complaint.” Id. at ¶ 40. Subsequently, Plaintiff received correspondence from 16 Defendant D’Angelo that advised she too had been assigned to the investigation 17 concerning the Rampley grievance. Id. at ¶¶ 142-44. Plaintiff alleges that it was 18 not until after the filing of his lawsuit in the Western District that Plaintiff was told 19 by Vanessa Norman that an investigation had been started against him regarding 20 ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS ~ 5 1 the Rampley grievance, and argues that the WSBA acted in retaliation when it 2 initiated its Rampley investigation. Id. at ¶149-50. 3 In September 2015, the district court in the Western District of Washington 4 dismissed Plaintiff’s complaint with prejudice. See W.D. Wash., Case No. 2:15- 5 CV-0375-JLR, ECF Nos. 23, 24. Plaintiff appealed to the Ninth Circuit, id. at ECF 6 No. 27, and that appeal remains pending. 7 On November 5, 2015, Plaintiff received a letter from Defendant D’Angelo 8 stating she planned to ask a Review Committee to order the Rampley grievance to 9 hearing. ECF No. 8 at ¶ 154. 10 Just four days later, on November 9, 2015, Plaintiff filed another lawsuit 11 against the WSBA and its employees, this time in Spokane County Superior Court. 12 See Eugster v. WSBA, No. 15204514-9 (Spok. Cnty. Super. Ct. 2015). Plaintiff 13 sought a judgment “declaring the WSBA Washington Lawyer Discipline System 14 unconstitutional because (1) the Discipline System does not pass strict scrutiny and 15 because (2) the Discipline System violates a lawyer’s right to due process of law.” 16 See ECF No. 16-2 at 2, 26-45. Plaintiff also sought damages. Id. at 44. The 17 superior court ultimately dismissed the suit with prejudice after concluding that 18 exclusive jurisdiction over matters of lawyer discipline rests with the Washington 19 Supreme Court, that Plaintiff already had been afforded an opportunity to raise his 20 constitutional concerns with the Washington Supreme Court in his prior ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS ~ 6 1 disciplinary proceedings, and that the WSBA officials were immune from 2 Plaintiff’s damages claims. See ECF No. 16-3. Plaintiff appealed that decision to 3 Division III of the Washington Court of Appeals where it remains pending. See 4 ECF Nos. 16 at 6; 17 at 3. 5 On January 29, 2016, the Review Committee ordered a public hearing 6 concerning the Rampley grievance. ECF Nos. 8 at ¶ 158; 17-1 at 160. The WSBA 7 Office of Disciplinary Counsel has not yet served a complaint on Plaintiff. ECF 8 Nos. 8 at ¶ 159; 17 at 16-19. Defendants claim “the complaint is being prepared 9 and a hearing is forthcoming.” ECF No. 18 at 8. 10 DISCUSSION 11 A. Standards of Review 12 A motion to dismiss for failure to state a claim tests the legal sufficiency of 13 the plaintiff’s claims. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). To 14 withstand dismissal, a complaint must contain “enough facts to state a claim to 15 relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 16 (2007). “Naked assertion[s],” “labels and conclusions,” or “formulaic recitation of 17 the elements of a cause of action will not do.” Id. at 555, 557. “A claim has facial 18 plausibility when the plaintiff pleads factual content that allows the court to draw 19 the reasonable inference that the defendant is liable for the misconduct alleged.” 20 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While a plaintiff need not establish a ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS ~ 7 1 probability of success on the merits, he or she must demonstrate “more than a sheer 2 possibility that a defendant has acted unlawfully.” Id. 3 A complaint must also contain a “short and plain statement of the claim 4 showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This 5 standard “does not require detailed factual allegations, but it demands more than an 6 unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 7 678 (quoting Twombly, 550 U.S. at 555). In assessing whether Rule 8(a)(2) has 8 been satisfied, a court must first identify the elements of the plaintiff’s claim(s) and 9 then determine whether those elements could be proven on the facts pled. See id. 10 at 675. The court should generally draw all reasonable inferences in the plaintiff's 11 favor, see Sheppard v. David Evans & Assocs., 694 F.3d 1045, 1051 (9th Cir. 12 2012), but it need not accept “naked assertions devoid of further factual 13 enhancement,” Iqbal, 556 U.S. at 678 (internal quotations and citation omitted). 14 Generally, in ruling upon a motion to dismiss, a court must accept all factual 15 allegations in the complaint as true and construe the pleadings in the light most 16 favorable to the party opposing the motion. Sprewell v. Golden State Warriors, 17 266 F.3d 979, 988 (9th Cir. 2001). 18 In contrast, when addressing a motion to dismiss for lack of subject matter 19 jurisdiction, the court is not bound by the plaintiff’s factual allegations. Pursuant 20 to Rule 12(b)(1), the Court “may ‘hear evidence regarding jurisdiction’ and ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS ~ 8 1 ‘resolv[e] factual disputes where necessary.’” Robinson v. United States, 586 F.3d 2 683, 685 (9th Cir. 2009) (quoting Augustine v. United States, 704 F.2d 1074, 1077 3 (9th Cir. 1983)). A Rule 12(b)(1) motion may be either facial, where the court’s 4 inquiry is limited to the allegations in the complaint; or factual, where the court 5 may look beyond the complaint to consider extrinsic evidence. Safe Air for 6 Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). Accordingly, in deciding 7 jurisdictional issues, the court is not bound by the factual allegations within the 8 complaint. Augustine, 704 F.2d at 1077. 9 10 B. Analysis As a preliminary matter, Defendants set forth multiple arguments asserting 11 that the Court lacks subject matter jurisdiction over Plaintiff’s claims. Because 12 such arguments concern the scope of the Court’s jurisdiction, the Court will 13 address these defenses first in order to determine if it can reach the remaining 14 defenses raised by Defendants. 15 Defendants argue Plaintiff’s claims should be dismissed because they were 16 already adjudicated in prior litigation, and, consequently, are now barred by the 17 doctrine of res judicata. ECF No. 16 at 14-16. Specifically, Defendants refer to 18 the September 2015 dismissal of the federal lawsuit Plaintiff filed in the Western 19 District of Washington (W.D. Wash., Case No. 2:15-CV-0375-JLR) and the June 20 2009 decision in Plaintiff’s prior disciplinary proceedings before the Washington ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS ~ 9 1 Supreme Court (In re Disciplinary Proceeding Against Eugster, 166 Wn.2d 293, 2 307 (2009)). Id. 3 The Court agrees that res judicata bars Plaintiff’s claims, but finds that it is 4 the most recent judgment, the April 2016 dismissal by the state court, see ECF No. 5 16-3, that now precludes the instant action. See Americana Fabrics, Inc. v. L & L 6 Textiles, Inc., 754 F.2d 1524, 1529-30 (9th Cir. 1985) (holding courts should give 7 res judicata effect to the last previous judgment entered if the same claim or issue 8 has been litigated in multiple courts). 9 Here, in late 2015, Plaintiff filed both the instant action and the state court 10 action. However, a plaintiff does not have the right to actively pursue parallel state 11 and federal actions both to judgment simultaneously. See Ollie v. Riggin, 848 F.2d 12 1016, 1017 (9th Cir. 1988) (noting that plaintiff’s section 1983 action would be 13 precluded if there had been a final state judgment on the merits upon which res 14 judicata could have been applied when simultaneous actions were filed). When 15 simultaneous actions are filed, as here, each case proceeds on its own course, and 16 then there is a race to judgment. AmerisourceBergen Corp. v. Roden, 495 F.3d 17 1143, 1151 (9th Cir. 2007). In this case, the state court issued judgment first. 18 Importantly, federal courts are required by statute to give res judicata effect 19 to the judgments of state courts. See 28 U.S.C. § 1738; Allen v. McCurry, 449 U.S. 20 90, 96 (1980). Indeed, “[i]t is now settled that a federal court must give to a state- ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS ~ 10 1 court judgment the same preclusive effect as would be given that judgment under 2 the law of the State in which the judgment was rendered.” Migra v. Warren City 3 Sch. Dist. Bd. of Educ., 465 U.S. 75, 81 (1984); see also ReadyLink Healthcare, 4 Inc. v. State Comp. Ins. Fund, 754 F.3d 754, 760 (9th Cir. 2014) (explaining 5 federal courts “…determine the preclusive effect of a state court judgment by 6 applying that state’s preclusion principles.”). Accordingly, this Court will apply 7 Washington law to analyze the preclusive effect of the state court’s judgment. 8 In Washington, res judicata, also known as claim preclusion, “refers to the 9 preclusive effect of judgments, including the relitigation of claims and issues that 10 were litigated, or might have been litigated, in a prior action.” Loveridge v. Fred 11 Meyer, Inc., 125 Wash.2d 759, 763 (1995) (quotation and citation omitted). The 12 purpose of the doctrine is “to prevent piecemeal litigation and ensure the finality of 13 judgments.” Spokane Research & Def. Fund v. City of Spokane, 155 Wash.2d 89, 14 99 (2005) (citation omitted). A second action must be dismissed on res judicata 15 grounds if it is “identical with the first action in the following respects: (1) persons 16 and parties; (2) cause of action; (3) subject matter; and (4) the quality of the 17 persons for or against whom the claim is made.” Id. “Res judicata also requires a 18 final judgment on the merits.” Karlberg v. Otten, 167 Wash. App. 522, 536 (2012) 19 (citation omitted). 20 ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS ~ 11 1 Here, as a threshold matter, the state court action was dismissed with 2 prejudice, see ECF No. 16-3 at 4, which constitutes a final judgment on the merits, 3 see Hisle v. Todd Pacific Shipyards Corp., 151 Wash.2d 853, 865 n.10 (2004) 4 (citation omitted).2 Moreover, the first element is satisfied as both suits involve the 5 same parties, with the only difference being the inclusion of the WSBA itself as a 6 named defendant in the state court action. Likewise, the quality of persons is 7 identical because the parties in this action are bound by the judgment in the first 8 suit, satisfying the fourth element. See Ensley v. Pitcher, 152 Wash. App. 891, 905 9 (2009) (the “identity and quality of parties” requirement is better understood as a 10 determination of who is bound by the first judgment—all parties to the litigation 11 plus all persons in privity with such parties). 12 As for the third element, the Court finds that the subject matter between the 13 two cases is identical. While Washington courts have not articulated a precise test 14 15 2 16 pendency of an appeal does not suspend or negate the res judicata effect. See 17 Lejeune v. Clallam Cnty., 64 Wash. App. 257, 265-66 (1992) (explaining a 18 judgment becomes final for res judicata purposes at the beginning, not the end, of 19 the appellate process, although res judicata can still be defeated by later rulings on 20 appeal). While Plaintiff appealed this judgment, Washington law dictates that the ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS ~ 12 1 to determine whether subject matter is identical, “[t]he critical factors seem to be 2 the nature of the claim or cause of action and the nature of the parties.” Marshall v. 3 Thurston Cty., 165 Wash. App. 346, 353 (2011) (quoting Hayes v. City of Seattle, 4 131 Wash.2d 706, 712 (1997)). As a result, Washington courts “generally focus on 5 the asserted theory of recovery rather than simply the facts underlying the dispute.” 6 Id. Here, both actions arose out of Plaintiff’s involvement with and objections 7 8 to the WSBA’s lawyer discipline system, and involve the same parties. Moreover, 9 in each lawsuit Plaintiff seeks a declaration by the court that the WSBA discipline 10 system is unconstitutional and also seeks to enjoin Defendants from disciplining 11 Plaintiff.3 The Court concludes that the subject matter element is satisfied. 12 13 Finally, with regard to the second element, to determine whether the causes of action are identical, the Court considers the following four criteria: 14 (1) [W]hether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; (2) whether substantially the same evidence is presented in the two actions; (3) whether the two suits involve infringement of the same right; and (4) whether the two suits arise out of the same transactional nucleus of facts. 15 16 17 18 3 In the state court action, Plaintiff also sought damages. Plaintiff originally sought 19 damages in the instant case, see ECF No. 1, but his amended complaint (ECF No. 20 8) abandoned this request. ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS ~ 13 1 Rains v. State, 100 Wash.2d 660, 664 (1983) (citations omitted). “It is not 2 necessary that all four factors favor preclusion to bar the claim.” Feminist Women's 3 Health Ctr. v. Codispoti, 63 F.3d 863, 867 (9th Cir. 1995) (citation omitted) 4 (applying Washington law). The most important factor is whether the two suits 5 arise from the same transactional nucleus of facts. Id. (citation omitted). 6 Here, a side-by-side comparison of the two complaints filed in both cases 7 reveals that the factual allegations in each are nearly identical. Compare ECF No. 8 8 at ¶¶ 16-159 (amended complaint in the instant action), with ECF No. 16-2 at ¶¶ 9 19-123, 185-222 (amended complaint in the state court action). Similarly, the 10 three causes of actions in this case are nearly identical to counts two, three, and 11 four in the state court action, and allege violation of the same rights, namely 12 Plaintiff’s procedural due process and freedom of association rights. The Court 13 concludes that the cause of action element is also fully satisfied. 14 Accordingly, because Plaintiff’s claims were already adjudicated in state 15 court, Plaintiff is foreclosed under the doctrine of res judicata from relitigating 16 those claims here in federal court. Consequently, Defendants’ motion to dismiss is 17 GRANTED. 18 Because res judicata precludes this action, the Court will not address 19 Defendants’ remaining arguments for dismissal. 20 // ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS ~ 14 1 ACCORDINGLY, IT IS ORDERED: 2 1. Defendants’ Motion to Dismiss (ECF No. 16) is GRANTED. 3 2. Plaintiff’s claims are DISMISSED with prejudice. 4 5 6 The District Court Executive is directed to enter this Order, enter Judgment for Defendants, provide copies to the parties, and CLOSE this case. DATED June 29, 2016. 7 8 THOMAS O. RICE Chief United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS ~ 15
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