Marshall v. Washington State Bar Association et al
Filing
110
ORDER re 100 Motion for Leave to Proceed by Samuel Conti.(TD)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE WESTERN DISTRICT OF WASHINGTON
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AT SEATTLE
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BRADLEY MARSHALL,
Plaintiff,
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v.
For the Western District of Washington
United States District Court
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WASHINGTON STATE BAR ASSOCIATION,
et al.,
Defendants.
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I.
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) Case No. CV-11-5319 SC
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) ORDER RE: MOTION FOR LEAVE
) TO PROCEED
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INTRODUCTION
This matter comes before the Court on Plaintiff Bradley
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Marshall's motion for permission to proceed with an adversary
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complaint against the Washington State Bar Association ("WSBA") in
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federal bankruptcy court and a legal malpractice action against
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Kurt Bulmer in the King County Superior Court.
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("Mot.").
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reply.
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this matter appropriate for determination without oral argument.
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As detailed below, the Court DENIES the Motion as it pertains to
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the bankruptcy action and issues sanctions against Mr. Marshall for
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unreasonably and vexatiously multiplying proceedings.
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ECF No. 100
WSBA has opposed the Motion and Mr. Marshall has filed a
ECF Nos. 102 ("Opp'n"), 106 ("Reply").
The Court finds
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II.
BACKGROUND
Mr. Marshall, formerly an attorney, was charged with
Supreme Court in 2009.
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Between 2009 and 2011, Mr. Marshall filed three collateral attacks
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challenging the conduct of his disbarment proceedings.
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Marshall's first collateral attack was filed in the Western
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District of Washington and was dismissed with prejudice after the
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United States District Court
misconduct by WSBA and ultimately disbarred by the Washington State
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For the Western District of Washington
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district court determined that it lacked jurisdiction to intervene
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See ECF No. 79 ("May 23 Order") at 3-5.
in an ongoing disciplinary action.
Mr.
Id. at 7.
Mr. Marshall's second collateral attack was filed in federal
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bankruptcy court.
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in that action alleged that his rights to a fair and impartial
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hearing were violated because his WSBA hearing officers were
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biased.
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amended complaint, later motion practice and appeals revealed that
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Mr. Marshall's aim was to avail himself of the automatic stay
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imposed under the Bankruptcy Code to prevent the Washington Supreme
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Court from disbarring him.
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that "there was no stay violation in the disciplinary proceeding"
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and that Mr. Marshall's claims were otherwise barred by the Rooker-
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Feldman doctrine and claim and issue preclusion.
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50, 58.
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court and the Ninth Circuit, which categorized Mr. Marshall's
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litigation as "vexatious and wasteful."
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Marshall v. Wash. State Bar Ass'n, 448 Fed. Appx. 661, 663 (9th
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Cir. 2011).
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Id.
Id. at 7-9.
Mr. Marshall's adversary complaint
Though the issue was not raised in Mr. Marshall's
Id. at 8.
The bankruptcy court found
ECF No. 68-6 at
The bankruptcy court's ruling was affirmed by the district
May 23 Order at 9;
Mr. Marshall's third collateral attack was filed with this
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targeted WSBA and fifty-three other defendants, claiming that their
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conduct during his disbarment proceedings violated his due process
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and equal protection rights, among other things.
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May 23, 2011, the Court granted the defendants' motions for
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judgment on the pleadings, finding that Mr. Marshall's claims were
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barred by res judicata and the Rooker-Feldman Doctrine, among other
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things.
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United States District Court
Court, and it looked much like his first two.
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For the Western District of Washington
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designated Mr. Marshall as a vexatious litigant and entered this
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Mr. Marshall's suit
ECF No. 1.
On
In light of Mr. Marshall's prior actions, the Court
Pre-Filing Order:
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Should Marshall wish to file any future claims in this
District against any Defendant in this action, whether
individually or in any combination thereof, each filing
shall be preceded by a Motion for Leave. The Motion for
Leave shall contain a certification under Federal Rule of
Civil Procedure 11 providing the factual and legal basis
for the claim and the specific reason(s) why it falls
outside the scope of this Order, and shall be accompanied
by a copy of the pleading or document Marshall seeks
leave to file. . . . This pre[-]filing order shall apply
only to future claims that are directly or indirectly
related to Marshall's disbarment or the disciplinary
proceedings described above.
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Id. at 28-29.
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After the Pre-Filing Order was entered, Mr. Marshall continued
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to assert legal challenges related to his disciplinary proceedings.
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On June 29, 2012, Mr. Marshall filed an action against "Kurt
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Bulmer, et al" in King County Superior Court (the "Bulmer Action"),
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Case No. 12-2-23116-8 SEA.
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Bulmer is named in the caption, the text of the complaint indicates
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that Mr. Marshall also intended to sue a number of the defendants
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named in his other collateral attacks, including WSBA and the
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Washington State Supreme Court.
ECF No. 103 Ex. A.
Id. ¶¶ 3-4.
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Though only Mr.
Mr. Marshall later
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amended the complaint so as to only name Mr. Bulmer, as well as a
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number of John and Jane Does.
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Bulmer represented Marshall at the hearing stage of the
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disciplinary proceedings that resulted in his disbarment.
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Mr. Marshall alleges that Mr. Bulmer conspired with the hearing
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officer at his disciplinary proceedings with the intent of bringing
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about his suspension and ultimate disbarment.
Mot. Ex. 2.
It appears that Mr.
See id.
Id. ¶ 17.
Several months later, on September 10, 2012, Mr. Marshall
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United States District Court
For the Western District of Washington
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filed a second adversary complaint against WSBA in the bankruptcy
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court for the Western District of Washington, Bankruptcy Case No.
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09-14944, his fourth collateral attack in federal court.
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1 ("Adversary Complaint").
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Adversary Complaint asserts that WSBA's disciplinary proceedings
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against Mr. Marshall violated the automatic bankruptcy stay because
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they were not excluded from the reach of the stay and because the
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proceedings "were conducted in [a] fraudulent and bad faith manner
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by a non-governmental unit."
Mot. Ex.
As in the second collateral attack, the
Id. at 3.
On September 24, 2012, Mr. Marshall filed the instant Motion,
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asking for permission to proceed with the Bulmer Action and the
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Adversary Complaint in accordance with the Pre-Filing Order.
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Motion was filed after Mr. Marshall filed the Bulmer Action and the
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Adversary Complaint.
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both the Bulmer Action and the Adversary Complaint constitute
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impermissible attempts to re-litigate matters that were already
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settled in Mr. Marshall's three prior collateral attacks.
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The
WSBA has opposed the Motion, arguing that
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III. DISCUSSION
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A.
The Bulmer Action
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The Court finds that the Bulmer Action falls outside the scope
in this "District," meaning the Western District of Washington.
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the interests of federalism and comity with the state courts, the
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Court did not intend for the Pre-Filing Order to apply to state
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court proceedings.
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United States District Court
of the Pre-Filing Order.
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For the Western District of Washington
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That order only applies to claims filed
leave of the Court prior to filing the Bulmer Action.
In
As such, Mr. Marshall was not required to seek
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B.
The Adversary Complaint
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The Court reaches a different conclusion with respect to Mr.
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Marshall's Adversary Complaint in bankruptcy court.
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asserts that the Adversary Complaint necessarily falls outside the
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scope of the Pre-Filing Order because bankruptcy courts have
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exclusive jurisdiction over claims concerning an alleged violation
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of the bankruptcy stay.
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cases which stand for the uncontroversial proposition that
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bankruptcy courts have jurisdiction over cases under Title 11 of
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the United States Code, including claims for violations of the
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automatic bankruptcy stay under 11 U.S.C. §
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5; Reply at 4.
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bankruptcy courts alone have exclusive jurisdiction over such
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matters.
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Cir. 2002).
Mot. at 5.
Mr. Marshall
Mr. Marshall cites a number of
362(k).
See id. at 4-
However, none of these cases suggest that the
See, e.g., In re Aheong, 276 B.R. 233, 239-45 (B.A.P. 9th
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Moreover, under 28 U.S.C. § 1334(a), district courts, like
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this one, have "original and exclusive of all cases under title
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11."
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not exclusive jurisdiction of all civil proceedings arising under
Further, under § 1334(b) district courts have "original but
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title 11, or arising in or related to cased under title 11."
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U.S.C. § 1334(b).
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in the Western District of Washington, may properly exercise
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jurisdiction over Mr. Marshall's claims under, arising in, or
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related to his bankruptcy.
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Thus, the undersigned, presiding by designation
Mr. Marshall's Adversary Complaint also falls squarely within
in the Western District of Washington; it was filed against WSBA,
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United States District Court
the scope of the Court's Pre-Filing Order.
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For the Western District of Washington
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The Complaint was filed
one of the defendants in Mr. Marshall's third collateral attack;
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and it concerns claims that are directly related to Mr. Marshall's
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disbarment and disciplinary proceedings.
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29; Adversary Complaint at 3-4.
See May 23 Order at 28-
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The Court finds that Mr. Marshall has failed to offer a
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coherent factual or legal basis for why his Adversary Complaint is
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not controlled by the previous rulings in his three prior
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collateral attacks.
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different and the people are different."
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clearly is not true.
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sued WSBA three times before.
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Mr. Marshall argues that "[t]he claims are
Mot. at 6.
But that
With respect to the "people," Marshall has
See May 23 Order at 6-11.
Further, the Adversary Complaint raises the same issues that
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were addressed and rejected in Mr. Marshall's three prior
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collateral attacks.
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already dealt with Mr. Marshall's claim that his "disciplinary
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proceedings were conducted in a fraudulent and bad faith manner."
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See May 23 Order at 13-24.
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that the lower federal courts lack jurisdiction to void Mr.
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Marshall's disbarment, see id. at 15, which is exactly the remedy
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that he is seeking in the Adversary Complaint.
This Court, and a number of other courts, have
Further, this Court has already found
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Adversary Complaint
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at 8.
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is also not new.
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attack and expressly rejected by the bankruptcy court, ECF No. 68-6
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at 58, the district court, id. at 80-81, and the Ninth Circuit, id.
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at 88.
It was raised in Mr. Marshall's second collateral
Accordingly, the Court DENIES Mr. Marshall's motion for leave
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Mr. Marshall's claim that WSBA violated the automatic stay
to proceed with the Adversary Complaint.
United States District Court
C.
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For the Western District of Washington
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Sanctions
WSBA requests that the Court sanction Mr. Marshall in the
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amount of $2,000 for vexatious and wasteful litigation tactics
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pursuant to 28 U.S.C. § 1927.
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or other person admitted to conduct cases in any court of the
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United States . . . who so multiplies proceedings in any case
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unreasonably and vexatiously may be required by the court to
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satisfy personally the excess costs, expenses, and attorneys' fees
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reasonably incurred because of such conduct."
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Section 1927 sanctions require a bad faith showing and may be
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imposed upon a pro se plaintiff, such as Mr. Marshall.
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Internal Revenue Serv., 915 F.2d 1230, 1235-36 (9th Cir. 1990).
Section 1927 provides: "Any attorney
28 U.S.C. § 1927.
Wages v.
The Court is satisfied that § 1927 sanctions are appropriate
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here.
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attack on his disbarment proceedings.
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claims asserted in the Adversary Complaint do not materially differ
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from the claims which this Court and multiple other courts rejected
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in Mr. Marshall's previous actions.
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should have been fully aware that his claims lacked merit when he
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filed the Adversary Complaint.
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The Adversary Complaint is Mr. Marshall's fourth collateral
As set forth above, the
Accordingly, Mr. Marshall
The Court previously declined to award § 1927 sanctions in
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conjunction with Mr. Marshall's third collateral attack, finding
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that the "narrowly tailored pre-filing order . . . entered against
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Marshall [wa]s sufficient."
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apparent that the Pre-Filing Order is not enough -- Mr. Marshall
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continues to press his meritless claims against WSBA.
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Marshall's bad faith is further underscored by the fact that he did
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not seek leave of the Court until after he filed the Adversary
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Complaint, in clear violation of the Pre-Filing Order.
United States District Court
For the Western District of Washington
However, it is now
Mr.
For these reasons, the Court ORDERS Mr. Marshall to pay a
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ECF No. 99 at 5.
sanction of $2,000 to WSBA pursuant to 28 U.S.C. § 1927.
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IV.
CONCLUSION
For the reasons set forth above, the Court finds that
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Plaintiff Bradley Marshall's state court action against Carl Bulmer
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is not subject to the Court's May 23, 2012 Pre-Filing Order.
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Court also finds that Mr. Marshall's Adversary Complaint against
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the Washington State Bar Association, currently pending before the
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Bankruptcy Court for the Western District of Washington, is subject
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to the Pre-Filing Order and DENIES Mr. Marshall's motion for leave
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to proceed with that action.
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Adversary Complaint constitutes unreasonable and vexatious
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litigation and ORDERS Mr. Marshall to pay WSBA $2,000 as a sanction
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pursuant to 28 U.S.C. § 1927.
Finally, the Court finds the
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IT IS SO ORDERED.
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Dated:
The
November 30, 2012
UNITED STATES DISTRICT JUDGE
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