11 4 10 sbn's reply to hafter's oppos to mtn to dismiss nvd 553 doc 36 d.nev._2-10-cv-00553_36_0

7/29/2019 11 4 10 SBN's Reply to Hafter's Oppos to Mtn to Dismiss Nvd 553 Doc 36 D.nev._2-10-Cv-00553_36_0

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David A. ClarkGeneral Counsel/Deputy Bar CounselNevada Bar No. 4443Sta te B ar o f Nevada600 East Charleston Blvd.Las Vegas, Nevada 89104(702) 382 2200Attorneys for Defendants

UNITED ST TES DISTRICT COURT

DISTRICT OF NEV D

JACOB HAFTER, ESQ. )) Case No.: 2:10-CV-00553-PMP-LRLPlaintiff, )v. )

ROB BARE, in hisofficial capacity; DAVID ) DEFEND NTS REPLYTO PL INTIFF SCLARK, in his official capacity; GLENN ) OPPOSITION TO MOTION TO DISMISSMACHADO, in his official capacity; PHIL ) SECOND MENDED COMPL INTPATTEE, in his official capacity; DOE )Defendants Ithrough X inclusive; and ROECORPORATIONS Athrough Z inclusive, )Defendants .

IPL INTIFF CONCEDES TH T THIS COURTSHOULD ST IN UNDER YOUNG R

In his Opposition, such that it is, Plaintiff concedes, Defendants bring their Motion onthe grounds that the Younger [sic] abstention doctrine prevents this Court from interferingwith their ongoing disciplinary process, now that a formal complaint has been filed withagainst Plaintiff. Plaintiff does not disagree with this point. Plaintiffs Opposition p. 2, lines19 21.

Frankly, that should be the end to the inquiry and Defendants motion to dismissshould be granted. As the Supreme Court ruled in Younger v Harris 401 U.S. 37, 91 S. Ct.746, 27 L Ed. 2d 669 (1971J, granting injunctive relief is, a violation of the national policy

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Case 2:10-cv-00553-PMP-LRL Document 36 Filed 11/04/10 Page 1 of 5

1 David A. ClarkGeneral Counsel/Deputy Bar Counsel2 Nevada Bar No. 4443State Bar of Nevada3 600 East Charleston Blvd.Las Vegas, Nevada 891044 (702) 382-2200

5 Attorneys for Defendants6 UNITED STATES DISTRICT COURT7 DISTRICT OF NEVADA8 JACOB HAFTER, ESQ.,9 ) Case No.: 2:10-CV-00553-PMP-LRLPlaintiff, )10 v ))

11 ROB BARE, in his official capacity; DAVID ) DEFENDANTS' REPLY TO PLAINTIFF'SCLARK, in his official capacity; GLENN ) OPPOSITION TO MOTION TO DISMISS12 MACHADO, in his official capacity; PHIL ) SECOND AMENDED COMPLAINTPATTEE, in his official capacity; DOE )13 Defendants I through X inclusive; and ROE)CORPORATIONS A through Z inclusive, 14Defendants.15

16 I.PLAINTIFF CONCEDES THAT THIS COURT17 SHOULD ABSTAIN UNDER YOUNGER.18 In his Opposition, such that it is Plaintiff concedes, Defendants bring their Motion on19 the grounds that the Younger [sic] abstention doctrine prevents this Court from interfering20 with their ongoing diSCiplinary process, now that a formal complaint has been filed with21 against Plaintiff. Plaintiff does not disagree with this point. Plaintiff's Opposition p. 2 lines22 19-21.23 Frankly, that should be the end to the inquiry and Defendants' motion to dismiss24 should be granted. As the Supreme Court ruled in Younger v Harris 401 u.s. 37, 91 S. Ct.25 746, 27 L. Ed. 2d 669 (1971), granting injunctive relief is, a violation of the national policy

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forbidding federal courts to stay or enjoin pending state court proceedings except underspecial circumstances. Id, at 749 citing 28 U.S.C. 2283, A court of the United Statesmay not grant an injunction to stay proceedings in a State court except as expresslyauthorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect oreffectuate its judgments. ). The Younger Court further held that, declaratory relief is alsoimproper when a prosecution involving the challenged statute is pending in state court at thetime the federal suit is initiated. Id at n. 2.

In Middlesex County Ethics Committee v. Garden State BarAss n, 457 U.S. 423, 102S. Ct. 2515, 73 L. Ed. 2d 116 1982), the Supreme Court extended the abstention doctrine toattorney discipline cases

The importance of the state interest in the pending state judicial proceedings and in thefederal case calls Younger abstention into play. So long as the constitutional claims ofrespondents can be determined in the state proceedings and so long as there is no showingof bad faith, harassment, or some other extraordinary circumstance that would makeabstention inappropriate, the federal courts should abstain, emphasis added).Id at 435. also, Hirsh v. Justices of Supreme Court of State of California 67 F.3d 7089th Cir. 1995) affirming dismissal on abstention grounds of suit brought to enjoindisciplinary proceedings and seeking declaratory relief).

However, Plaintiff clings to the argument that nothing in Younger prevents the casefrom proceeding with respect to the due process violations and requests that he be allowedto amend his complaint or stay these proceedings. Opposition, 2:23-27. This is simplywrong. The quoted language above plainly states that as long as the constitutional claimscan be determined in the state proceedings, the federal courts should abstain.

Plaintiff argues tepidly that he is, [Hjighly concerned about his ability to raise theconstitutional issues he has with the discipline in that matter. . . . Id at 4:22. But, theSupreme Court in Middlesex squarely answered the issue of resolving due process and otherconstitutional claims, finding abstention proper when the claims could be addressed in state

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1 forbidding federal courts to stay or enjoin pending state court proceedings except under2 special circumstances. Id., at 749 (citing 28 U.S.C. 2283, A court of the United States3 may not grant an injunction to stay proceedings in a State court except as expressly4 authorized by Act o Congress, or where necessary in aid o its jurisdiction, or to protect or5 effectuate .its judgments. ). The Younger Court further held that, declaratory relief is also6 improper when a prosecution involving the challenged statute is pending in state court at the7 time the federal suit is initiated. Id at n. 2.8 In Middlesex County Ethics Committee v Garden State ar Ass n, 457 U.S. 423, 1029 S. Ct. 2515,73 L. Ed. 2d 116 (1982), the Supreme Court extended the abstention doctrine to

10 attorney discipline cases,11 The importance of the state interest in the pending state judicial proceedings and in thefederal case calls Younger abstention into play. So long as the constitutional claims of12 respondents can be determined in the state proceedings and so long as there is no showingof bad faith harassment or some other extraordinary circumstance that would make13 ~ s t e n t i o n inappropriate th 8 federal courts should abstain. (emphasis added).14 Id. at 435. See also, Hirsh v Justices of Supreme Courl of State of California, 67 F.3d 70815 (9th Cir. 1995) (affirming dismissal on abstention grounds o suit brought to enjoin16 disciplinary proceedings and seeking declaratory relief).17 However, Plaintiff clings to the argument that nothing in Younger prevents the case18 from proceeding with respect to the due process violations and requests that he be allowed19 to amend his complaint or stay these proceedings. Opposition, 2:23-27. This is simply20 wrong. The quoted language above plainly states that as long as the constitutional claims21 can be determined in the state proceedings, the federal courts should abstain.22 Plaintiff argues tepidly that he is [H]ighly concerned about his ability to raise the23 constitutional issues he has with the discipline in that matter Id. at 4:22. But, the24 Supreme Court in Middlesex squarely answered the issue o resolving due process and other25 constitutional claims, finding abstention proper when the claims could be addressed in state

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court. Moreover Minimal respect for the state processes of course precludes anypresumption that the state courts will not safeguard federal constitutional rights. Middlesex ounty457 U.S. at 431 102 S. Ct. at 2521 (original emphasis .

IIPL INTIFF F ILS TO OFFER V LID CL IMSUPON WHICH RELIEF C N BE G R NT ED

In his Opposition, Plaintiff contends that he is entitled to damages for allegedviolations ofhis rights arising from two (2) incidents. First, Plaintiff alleges that theStateBarbreached the confidentiality of the Nevada Supreme Court Rules with respect to thediscipline process. Opposition 5:4-17; Second Amended Complaint, ffil 32 and 33. Second,Plaintiff alleges that the State Bar has prevented him from participating in hearings as amember ofthe Southern Nevada Disciplinary Board and that this somehow impacts Plaintiffsright to practice law Opposition 5:18 - 6:17 1

First, to the extent Plaintiff might be entitled to confidentiality in the discipline processsuch is a state right, not a federal one to be addressed by this court. In any event, such aclaim can certainly be addressed by the Nevada Supreme Court given that it arises from thatCourt s own rule and discipline function. In addition, Supreme Court Rule (SCR) 121(Confidentiality) provides foran exception as follows:

1. Generally All proceedings involving allegations of misconduct by anattorney shall be kept confidential until the filing of a formal complaint. Allparticipants in a proceeding, including anyone connected with it shall conductthemselves so as to maintain the confidentiality of the proceeding until aformal complaint is filed.

15. Statements by the State Bar of Nevada Notwithstanding Rule 121(1),the state bar may disseminate the procedural status and the general natureofa grievance or complaint upon request.

Apparently given the silence his Opposition Plaintiff isabandoning his claims Count that failingtosee the proposed Letter of Reprimand orbeing told the standard of proof violates his rights


1 court. Moreover, Minimal respect for the state processes, of course, precludes any2 presumption that the state courts will not safeguard federal constitutional rights. Middlesex3 County 457 U.S. at 431, 102 S. Ct. at 2521 (original emphasis).4 II.PLAINTIFF FAILS TO OFFER VALID CLAIMS5 UPON WHICH RELIEF CAN BE GRANTED.6 In his Opposition, Plaintiff contends that he is entitled to damages for alleged7 violations of his rights arising from two 2) incidents. First, Plaintiff alleges that the State Bar8 breached the confidentiality of the Nevada Supreme Court Rules with respect to the9 discipline process. Opposition 5:4-17; Second Amended Complaint, m 32 and 33. Second,

10 Plaintiff alleges that the State Bar has prevented him from participating in hearings as a11 member of the Southern Nevada Disciplinary Board and that this somehow impacts Plaintiffs12 right to practice law. Opposition. 5:18 - 6:17.113 First, to the extent Plaintiff might be entitled to confidentiality in the discipline process,14 such is a state right, not a federal one to be addressed by this court. In any event, such a15 claim can certainly be addressed by the Nevada Supreme Court given that it arises from that16 Court's own rule and discipline function. In addition, Supreme Court Rule (SCR) 12117 (Confidentiality) provides for an exception as follows:189

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1. Generally. All proceedings involving allegations of misconduct by anattorney shall be kept confidential until the filing of a formal complaint. Allparticipants in a proceeding. including anyone connected with it. shall conductthemselves so as to maintain the confidentiality of the proceeding until aformal complaint is flied. .

15. Statements by the State ar of Nevada. Notwithstanding Rule 121(1),the state bar may disseminate the procedural status and the general nature ofa grievance or complaint upon request.

25 1 Apparently, given the silence in his Opposition, Plaintiff is abandoning his claims in Count II that failingto see the proposed Letter of Reprimand or being told the standard of proof violates his rights.


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If Plaintiff even has a colorable claim under these facts it can be addressed in th e stateproceedings and such allegations fail to prevent dismissal under Younger

Second, the opportunity to serve on a hearing panel for a disciplinary matter is a farcry from the ability to practice law and Plaintiff s obdurate insistence in linking the twodemonstrates just how thin his alleged claims really are.

Plaintiff has never been denied the right to practice law. He has never been deniedthe opportunity to serve on the Southern Nevada Disciplinary Board. He was peremptorilychallenged from serving on a hearing byundersigned counsel pursuantto SCR 105 2 a .

But what Plaintiff ignores and fails to tell this Court is that he, in fact, recently servedon a hearing panel for one of undersigned counsel s matters two weeks ago, on October 22,2010 ee Exhibit A-4.

Plaintiff fails to offer any valid facts or law to support the additional allegationsin theSecond Amended Complaint. As such, to the extent such claims might survive abstentionunder ounger the court should dismiss them under Fed.R. Civ. P. 12 b) 6).

ON LUSION

Plaintiff s Second Amended still seeks the injunctive and declaratory relief he hassought in prior pleadings, relief Plaintiff now concedes should be dismissed under oungerand iddlesexPlaintiffs last-ditch efforts to plead allegations to maintain his lawsuit fail to


1 f Plaintiff even has a colorable claim under these facts, it can be addressed in the state2 proceedings and such allegations fail to prevent dismissal under Younger.3 Second, the opportunity to serve on a hearing panel for a disciplinary matter is a far4 cry from the ability to practice law and Plaintiff s obdurate insistence in linking the two5 demonstrates just how thin his alleged claims really are.S Plaintiff has never been denied the right to practice law. He has never been denied7 the opportunity to serve on the Southern Nevada Disciplinary Board. He was peremptorily8 challenged from serving on a hearing by undersigned counsel pursuant to SCR 105(2)(a).9 But what Plaintiff ignores and fails to tell this Court is that he, in fact, recently served

10 on a hearing panel for one of undersigned counsel s matters two weeks ago, on October 22,11 2010. See Exhibit A-4.12 Plaintiff fails to offer any valid facts or law to support the additional allegations in the13 Second Amended Complaint. As such, to the extent such claims might survive abstention14 under Younger the court should dismiss them under Fed. R Civ. P 12(b)(6).1516789

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III.CONCLUSION.Plaintiff s Second Amended still seeks the injunctive and declaratory relief he has

sought in prior pleadings, relief Plaintiff now concedes should be dismissed under Youngerand Middlesex. Plaintiff s last-ditch efforts to plead allegations to maintain his lawsuit fail to

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establish valid legal theories of facts to survive dismissal under Fed. R. Civ. P. 12 b) 6). Forthe foregoing reasons, this Court should grant defendants Motion to Dismiss Plaintiff sSecond Amended Complaint.

TE this^Oavof November 2010.STATE BAR QFlvJBVADA

General Counsel/Deputy Bar Counsel6 East Charleston BoulevardLas Vegas, Nevada 89104702 382-2200Attorney for Defendants


1 establish valid legal theories o facts to survive dismissal under Fed. R Civ. P 12(b)(6). For2 the foregoing reasons, this Court should grant defendants Motion to Dismiss Plaintiff s3 Second Amended Complaint.45678

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DATED t h i ~ Y of November 2010.

D vi . ClarkGeneral Counsel/Deputy Bar Counsel600 East Charleston BoulevardLas Vegas, Nevada 89104(702) 382-2200Attorney for Defendants

11 4 10 sbn's reply to hafter's oppos to mtn to dismiss nvd 553 doc 36 d.nev._2-10-cv-00553_36_0

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