Petition for Writ of Certiorari — JMYK, P. C. v. Washington State Bar Ass'n

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testimony by telephone and their sworn written

statements were excluded at the hearing. App. 12a, R.

4, 25,412

In accordance with the rules alleged to have been

violated by petitioner, on December 19, 2003, the Bar

Association entered formal findings of fact, contusions

of law, and a suspension against petitioner. The hearing

officer summarized the burden of proof necessary to

sustain the charges as follows:

2 The Washington Rules for Enforcement of Lawyer Conduct,

“ELC,” provide for the full participation of witnesses in

disciplinary proceedings, which includes the presentation of

witnesses by televison, telephone, or other electronic means. ELC

10.1%(d), 10.14(e); RCW 34.05.44%3). See Beltran-Tirado v. I.N.S.,

213 F.3d 1179, 1185-86 (9th Cir. 2000); Official Airline Guides v.

Churchfield Pub., 756 F.Supp. 1393, 1398-99 n.2 (D.Or. 1990), aff'd,

6 F.3d 1385 (9th Cir. 1993); In re San Juan Dupont Plaza Hotel

Fire Litigation, 129 F.R.D. 424, 425 (D.Puerto Rico 1989); Elson v.

State, 633 P.2d 292, 302 (Alaska App. 1981), aff'd, 659 P.2d 1195

(Alaska 1983); State v. Aldape, 307 N.W.2d 32, 43 (lowa 1981).

ELC 10.14 (d) & (e) provide that the Washington Rules of

Evidence and the Washington Administrative Procedures Act

(“APA”) should be looked to for guidance. Under the APA, and in

particular, RCW 34.05.44%3), all or part of the hearing may be

conducted by electronic means.

ELC 10.13(d) provides in material part, “Except as provided

in subsection (b)(2) and rule 10.6, witnesses must testify under

oath.” ELC 10.13(b)2) states in relevant part that the hearing

officer or panel must admit a deposition regardless of the

deponent’s availability, and that an affidavit or declaration is also

admissible if the facts stated are within the witness’s personal

knowledge, the facts are set forth with particularity, and show that

the witness could testify competently.

In attorney disciplinary proceedings,

state bar disciplinary counsel has the

burden of establishing an act of

misconduct by a clear preponderance of

the evidence. RLD 4.11(b/ELC 10.14; In

re Allotta, 109 Wn.2d 787, 792, 748 P.2d

628 (1988)...

****Where the clear preponderance

standard is imposed, an allegation proven

by a simple preponderance, must of

course, fall by the wayside. An attorney

accused of unethical conduct, if proven,

wears the stigma of the sanction like a

scarlet letter whether as a practicing

attorney or on another stage of life for

years beyond. R. 30, 32.

The decision announced that the Bar Association

had proven its contentions of misconduct “by a clear

preponderance of the evidence.” R. 26. The decision

cited no specific evidence to support the suspension, but

merely issued conclusory statements mirroring the

language of the Rules of Professional Conduct.

The federal action alleges that petitioner’s conduct

in the appeal and the claims of a conflict of interest do

not violate the Rules of Professional Conduct. The

complaint is based on specific factual grounds that

petitioner consulted with the clients about a potential

conflict of interest, and that the clients gave their

consent in accordance with rules to the conflict of

interest alleged. It is based on explicit grounds that the

evidence of the clients by deposition, in sworn written

statements, and in their offered testimony absolved

petitioner of the charges. The complaint alleges that

this evidence was before the Bar Association in the

disciplinary proceedings against petitioner. App. 12a,

R. 3, 4.

The amended complaint alleges that the Bar

Association administered, approved of and pursued

these claims with the requisite degree of culpability,

and that it acted with deliberate indifference to the

constitutional rights of the plaintiff and for the purpose

of depriving plaintiff of the license to practice law. R. 4,

In May 2004, a motion to dismiss pursuant to

Rule 12(b), Fed. R. Civ. P., was filed in the District

Court on behalf of the Bar Association. On June 14,

2004, the District Court entered its order granting

defendant’s motion to dismiss the complaint without

prejudice, holding that dismissal was warranted for

improper venue (Fed. R. Civ. P. 12(b)(3)), and lack of

subject matter jurisdiction (Fed. R. Civ. P. 12(b)(1)).®

With respect to venue, the District Court held

that a substantial part, if not all, of the events occurred

in Washington, that plaintiff isthe attorney in a case

there which gave rise to the disciplinary proceedings,

3 No factual matter was offered in support of the motion to dismiss

other than the Bar Association’s findings of fact, conclusions of law,

and decision of suspension, and a declaration from its counsel in

federal court reciting the status of the proceedings, petitioner’s

suspension, and that an appeal had been filed by petitioner with

the Washington State Disciplinary Board. Petitioner offered

applications for employment with public entities in essence

verifying the disclosure of the suspension to education authorities.

R. 56, 57.

and the latter proceeding was conducted before the Bar

Association, The Court held that all underlying actions

arose from events occurring in Washington. App. 15a-

16a. Contemporaneous with the holding of dismissal for

improper venue, the District Court also held that

personal jurisdiction was absent in this case. The Court

noted, in its oral opinion in the colloquy from the bench,

Mr. Keefe. Okay, what we’d ask ... would

be permission to amend the complaint to

show that [consistent] with the statute

that part of the events occurred in this

district giving rise to venue. And I believe

that ...we can show that,

The Court. No, I won ’t give you the

opportunity to amend the complaint. ‘This

is a case if you ‘re going to sue the

Washington State Bar, you’re going to

have to sue them in Washington, either in

State Court or the Federal Court up there

depending on the theory of recovery that

you intend to bring. The Washington

State Bar does not do business in the

State of California. They have no general

or specific jurisdiction [to] evoke this

Court’s jurisdiction. App. 21a.

Mr. Welden. Well, what I want to say

your Honor, I would ask that it be

dismissed with prejudice, but I

understand the Court’s ruling.

The Court. No, because if he has issues ...

he can litigate those issues in Washington

.. this District Court has no jurisdiction

over that, over the claims he’s asserting

here.

Mr. Welden. Correct. And my position

would be that .. the District Court in

Washington would not have subject

matter jurisdiction either.

The Court. Well, he has ... a 1983 case, so

he can file in the Federal Court in

Washington. App. 9a.

With respect to subject matter jurisdiction, the

District Court held that dismissal is proper on this

separate basis. It noted that the evidence submitted by

the Washington Bar showed that the suspension must

be reviewed by the Disciplinary Board and sent to the

Supreme Court for a final order. It held that as such,

plaintiffs’ complaint is premature since no official action

has been taken with respect to the suspension. App.

20a-21a.

The District Court also held that even assuming

the suspension was timely challenged, federal courts do

not have jurisdiction to review state court orders

concerning the discipline of state bar members. (citing

Doe v. State Bar of California, 582 F.2d 25 (9th Cir.

1978); Mackay v. Nesbett, 412 F.2d 846, (9th Cir.), cert.

denied, 396 U.S. 960 (1969)). App. 21a-22a.

An appeal was timely filed with the Ninth

Circuit Court of Appeals. On April 13, 2005, the Court

issued a memorandum decision affirming the District

Court. The Court of Appeals held that this action was

properly dismissed for improper venue on the grounds

that the Washington State Bar Association does not

reside in, nor did a substantial part of the events

forming the basis of the claims take place in the Central

District of Californja. (citing 28 U.S.C. §1391(b)(1)-(2);

King v. Russell 963 F.2d 1301, 1304 (9th Cir. 1992)).

App. 2a.

The Court of Appeals did not address the issue

of subject matter jurisdiction, affirming on venue

grounds, as noted.

REASONS FOR GRANTING THE PETITION

I. The Petition Presents the Important Federal

Question of Whether Personal Jurisdiction

in an Action Against a Bar Association for a

Suspension In Violation of the Standards of

Middlesex Ethics Comm. v. Garden State

BarAss’n., 457 U.S. 423 (1982), is Present in

a Federal Judicial District Outside the State

Where the Effects Giving Rise to the Claim

are Alleged to Have Occurred.

As matters stand, petiticners cannot realistically

pursue their claims in Washington state, despite the

District Court’s oral opinion that petitioners can file

their section 1983 case in federal court in Washington.

This is based on the District Court’s holding that

“federal district courts do not have jurisdiction to

review state court orders concerning the discipline of

state bar members.” (Citing Doe v. State Bar of

California 582 F.2d 25 (9th Cir. 1978); Mackay v.

Nesbett 412 F.2d 846 (9th Cir.), cert. denied 396 U.S. 960

(1969)).

The District Court held that Middlesex Ethics

Comm. v. Garden State Bar Ass’n. 457 U.S. 423 (1982),

is not applicable here because “[a]t issue in Middlesex,

was whether a federal court should abstain from

considering the constitutionality of disciplinary rules

that are the subject of pending state disciplinary

proceedings within the jurisdiction of the New Jersey

Supreme Court.”

The District Court held that “Plaintiff is not

challenging the constitutionality of any particular rules;

rather, he is challenging the specific actions taken at his

hearing. More specifically, he alleges that the

disciplinary proceeding was conducted in a manner

unfair to him. Such allegations, however, cannot be

entertained by this Court. See Rosenthal, Justices of

the Supreme Court of California, 910 F.2d 561, 566 (9th

Cir. 1990).” App. 2a.

Accordingly, unless the merits of the

jurisdictional issues are reached by this Court,

petitioner, impressed with a suspension that meets the

standards of this Court’s decision in Middlesex, may be

barred from pursuing this action in Washington.‘

This case presents the fundamental and

recurring issues of in personam jurisdiction and venue

in the context of this Court’s decision in Middlesex

Ethics Comm., and how courts are to resolve these

4 Principles of res judicata and the law of the case doctrine are

probable defenses to a federal action under 42 U.S.C. § 1983 filed in

Washington. See International Union v. Karr, 994 F.2d 1426, 1429

(9th Cir.1993) (res judicata); Pit River Home and Agr .Co-Op

Ass'n v. U.S., 30 F.3d 1088, 1096-97 (9th Cir. 1994) (law of the

case).

issues when a section 1983 case is filed in a federal

judicial district outside the state where the effects

giving rise to the claim are alleged to have occurred.

A. The Conclusion that Personal Juris-

diction is not Present in this Case is

Contrary to this Court’s Decision in

Calder v. Jones, 465 U.S. 783 (1984).

The early case of International Shoe Co. v.

Washington, 326 U.S. 310, 316 (1945) focused on due

process and a defendant’s contacts with the forum. The

Due Process Clause of the Fourteenth Amendment is

satisfied if the assertion of personal jurisdiction over a

nonresident defendant is predicated on “minimum

contacts” between the defendant and the State “such

that the maintenance of the suit does not offend

traditional notions of fair play and substantial justice.”

More recently, in Asahi Metal Industry Co. v.

Superior Court, 480 U.S. 102, 108-09 (1987), and Burger

King Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985), this

Court emphasized that the “constitutional touchstone of

the determination whether an exercise of personal

jurisdiction comports with due process remains

whether the defendant purposefully established

‘minimum contacts’ in the forum State.” These cases

also synthesized the foreseeability component from

World-Wide Volkswagen Corp. v. Woodson, 444 USS.

286 (1980), in the due process analysis. Asahi Metal

Industry Co., 480 US., at 109-113, Burger King Corp.,

471 USS., at 474.

In World-Wide Volkswagen Corp., the Court

affirmed “[t}he relationship between the defendant and

the forum” as the test of reasonableness, and

emphasized foreseeability and other relevant factors in

the due process equation. 444 U.S., at 292, 297. “[Tjhe

foreseeability that is critical to due process analysis ... is

that the defendant’s conduct and connection with the

forum State are such that he should reasonably

anticipate being haled into court there.” /d., at 297.

In evaluating “minimum contacts, a court

properly focuses on ‘the relationship among the

defendant, the forum, and the litigation.” Keeton v.

Hustler Magazine, Inc., 465 U.S. 770, 775 (1984).°

In Calder v. Jones, 465 U.S. 783, 791 (1984), this

Court, in a unanimous opinion by Justice Rehnquist,

held that the purposeful availment standard in the

personal jurisdiction analysis can be met if intentional

conduct in a foreign state was calculated to cause injury

in the forum state.

Calder involved an allegedly li ious story in the

National Enquirer about a California entertainer. The

decision found that petitioner's “intentional, and

allegedly tortious, actions were expressly aimed at

California.” Petitioners wrote “an article they knew

would have a potentially devastating impact upon

respondent. And they knew the brunt of that injury

would be felt by respondent in the State in which she

lives and works anu in which the National Enquirer has

its largest circulation. Under the circumstances,

5 California’s long-arm statute authorizes the exercise of

jurisdiction “on any basis not inconsistent with the Constitution of

this state or of the United States.” Cal. Civ. Proc. Code § 410.10;

Asahi Metal Industry Co., 480 U.S., at 106.

petitioners must ‘reasonably anticipate being haled into

court there....”” “An individual injured in California,”

wrote the Court, “need not go to Florida to seek

redress from persons who, though remaining in Florida,

knowingly cause the injury in California.” The Court’s

opinion concluded that, “Jurisdiction over petitioners is

therefore proper in California based on the ‘effects’ of

their Florida conduct in California.” 465 U.S., at 788-90.°

This Court has never directly held whether

personal jurisdiction in a case involving fair evidence of

an alleged illicit suspension under the standards of the

Middlesex decision is present in a federal district

outside the state where the effects giving rise to the

claim are maintained to have occurred.

This case is similar to Calder, but it is different

because, as contended by the Bar Association below, it

resides solely within the state of Washington, its offices

are in Seattle and Olympia, petitioner is a lawyer

6 The Courts in Myers v. Bennett Law Offices, 238 F.3d 1068 (9th

Cir. 2001), and Gordy v. Daily News, L.P. 95 F.3d 829 (9th

Cir.1996), came to similar conclusions. In Myers, the Ninth Circuit

held that jurisdiction in Nevada over Utah residents in a case

under the Fair Credit Reporting Act was proper when a law office

was found to have acted intentionally in requesting credit reports

on Nevada residents. The request was expressly aimed at Nevada

because it individually targeted Nevada residents whom appellees

knew were Nevada residents. The Court held that the effects of

the conduct, invasion of privacy, were felt in Nevada. 238 F.3d, at

1073-74. In Gordy, the Court held that in a libel case, jurisdiction in

California was appropriate because a major forum-related activity

was the writing of an alleged libel in New York that had a tortious

effect on a California resident. “It is reasonable to expect the bulk

of the harm from defamation of an individual to be felt at his

domicile.” 95 F.3d, at 833.

admitted in Washington, the facts giving rise to the

disciplinary proceeding involve a case in Washington

courts, and the latter proceeding was conducted before

the Bar Association in Washington. App. 18a-19a, R. 16.

Its main argument focuses on a lack of contacts

with California. It is to be noted that a foreign act with

forum effects can confer jurisdiction over a defendant

who has never physically entered the forum. Burger

King, 471 US., at 476.

The harm is the same to the torts of libel and bad

faith, and, as it bears on the latter, is governed by

federal statutes, in particular 42 U.S.C. § 1983, federal

case law under Middlesex and Younger v. Harris, 401

U.S. 37 (1971), and Washington Rule for Enforcement

of Lawyer Conduct (“ELC”) 2.12 (2002). Under the

latter rule, the Bar Association has consented to suits

against it.

With respect to the suspension, it must be

reported to public authorities with whom petitioner has

sought employment, and must be reported to California

bar authorities with whom petitioners cannot

realistically register with until the conclusion of the

proceeding. Reporting requirements are tangible and

have the objective effects of preventing or hindering

registration and employment in California. As the Bar

Association has itself stated, “An attorney accused of

unethical conduct, if proven, wears the stigma of the

sanction like a scarlet letter whether as a practicing

attorney or on another stage in life for years beyond.”

According to the Bar Association, it has proven its case

by a “clear preponderance of the evidence.” The

decision is a public record.

The effects of the constitutional violations as

alleged under 42 U.S.C. § 1983 are felt in California.

This appears to be firmly supported by this Court’s

decisions in Calder and Keeton, where the Court

wrote,”... the brunt of that injury would be felt,” and

where “(t]he victim of a libel, like the victim of any

other tort, may choose to bring suit ....” Calder, 465

U.S., at 789-90; Keeton, 465 U.S., at 780.

The targeting arises because petitioner is an

individual who lives and works in California. The

actions were expressly aimed at California because the

Bar Association knew that the main repercussions of

the suspension, alleged to be unconstitutional and in

violation of the bad faith directives in Middlesez, like

the effects of a libel, would be felt in the State where

petitioner lives. It knew that petitioner would likely

suffer harm there.

The reasonableness of the exercise of jurisdiction

depends on an evaluation of several factors. “A court

must consider the burden on the defendant, the

interests of the forum state, and the plaintiff's interest

in obtaining effective relief. It must also weigh in its

determination ‘the interstate judicial system’s interest

in obtaining the most efficient resolution of

controversies; and the shared interest of the several

States in furthering substantive social policies.”” Asahi

Metal Industry Co., 480 US., at 113; Burger King, 471

US., at 477.

A defendant must make a compelling showing

that the presence of these or other considerations

would render jurisdiction unreasonable. /d. It is true

that petitioners could have sued in Washington, but

“{aJn individual injured in California need not go to

[Washington] to seek redress from persons who, though

remaining [in Washington], knowingly cause the injury

in California.” Calder, 465 U.S., at 790. California has “a

strong interest in providing an effective means of

redress for its residents tortiously mjured.” Gordy, 95

F.3d, at 836. Moreover, the existence of an alternative

forum (e.g., the federal courts in Washington) and the

burden of defending in California cannot appreciably

satisfy the burden of showing that jurisdiction is

unreasonable. As a matter of due process, the process

it has received thus far shows that this is not a

consideration.

The Bar Association did not present other

arguments or justifications showing that the exercise of

specific, personal jurisdiction would be unreasonable.

Accordingly, it must reasonably anticipate being haled

into court here, as in a libel action, for the effects of an

illicit suspension in California.

B. There was Sufficient Evidence of a Violation

of the Standards in Middlesex Ethics Comm.

v. Garden State Bar Ass’n., 457 U.S. 423

(1982) to Warrant a Determination of

Personal Jurisdiction in California.

In Scheuer v. Rhodes, 416 U.S. 232, 236 (1974),

this Court held, “When a federal court reviews the

sufficiency of a complaint before the reception of any

evidence either by affidavit or admissions, its task is

necessarily a limited one. The issue is not whether a

plaintiff will ultimately prevail but whether the

claimant is entitled to offer evidence to support the

claims.” The Court continued, “In appraising the

sufficiency of the complaint we follow, of course, the

accepted rule that a complaint should not be dismissed

for failure to state a claim unless it appears beyond

doubt that the plaintiff can prove no set of facts in

support of his claim which would entitle him to relief.”

In Summit Health, Lid. v. Pinhas 500 U.S. 322,

325 (1991) this Court more recently held on a Rule

12(b)(6) motion, “[Wje must assume the truth of the

material facts as alleged in the compiaint.” In

Leatherman v. Tarrant County Narcotics Intelligence

and Coordination Unit 507 U.S. 163, 168 (1993), a case

under 42 U.S.C. § 1983, the Court explained:

[Tjhe liberal system of “notice pleading”

set up by the Federal Rules [,} Rule

8(a)(2) ... doles] not require a claimant to

set out in detail the facts on which he

bases his claim. To the contrary, all the

Rules require is “a short and plain

statement of the claim ” that will give the

defendant fair notice of what the

plaintiff's claim is and the grounds upon

which it rests.

The complaint specifically alleges that

petitioner consulted with the clients about a potential

conflict of interest, and that the clients gave their

consent to the conflict of interest alleged. It is based on

explicit grounds that the evidence of the clients by

deposition, in sworn written statements, and in their

offered testimony absolved petitioner of the charges.

The complaint alleges that this evidence was before the

Bar Association in the disciplinary proceedings against

petitioner.

These allegations in the complaint establish a

prima facie case under Rule 12(b)(6) that the bar

proceedings were brought without a reasonable

expectation of obtaining a valid disciplinary violation,

conviction or judgment. See Kugler v. Helfant, 421 U.S.

117, 126 n.6 (1975); Baffert v. California Horse Racing

Bd., 332 F.3d 613, 621 (9th Cir. 2003). They meet the

standard of a short and plain statement of the claim,

and, combined with the allegations that it acted with

the requisite degree of culpability and with deliberate

indifference to the constitutional rights-of the plaintiff,

are sufficient to state a claim under 42 U.S.C. § 1983.

They are also sufficient to establish bad faith under

Middlesex Ethics Comm. v. Garden State Bar Ass’n.,

457 U.S. 423, 435, 437 (1982), in bringing the

proceedings aid suspending petitioner in the

proceedings.

In Middlesex the New Jersey Bar Association

brought disciplinary charges against respondent, a

member of the New Jersey Bar. Rather than filing an

answer to the charges under disciplinary procedures,

respondent (and others) filed suit in federal court

contending that the disciplinary rules. violated

respondent’s First Amendment Rights, and that the

rules were facially vague and overbroad. The district

court granted respondent’s request for trial (a two-day

hearing) on these issues, allowing respondent an

opportunity to establish bad faith, harassment, or other

significant circumstances which would justify an

exception to Younger abstention. See Younger v.

Harris, 401 U.S. 37 (1971). After the hearing, the

District Court determined that the evidence did not

justify an exception to the Younger abstention doctrine.

Middlesex 457 US., at 429.

This Court in Middlesex held that the policies

underlying Younger are fully applicable to non-criminal

judicial proceedings in cases like this (7.¢., pending state

disciplinary proceedings). 457 U.S., at 432-34. The

Court noted that respondents had not challenged the

District Court’s findings regarding bad faith or

harassment or its findings that the state rules were not

flagrantly unconstitutional. The Court held that in the

absence of bad faith, harassment, or other unusual

circumstances, the principles underlying Younger were

appropriate. 457 U.S., at 437.

Contrary to the Bar Association’s arguments

below, it is clear under Middlesex that federal courts

have subject matter jurisdiction to entertain the merits

of cases like the present case were bad faith,

harassment or other important circumstances are

present in an original federal court action. Where

evidence of these issues is present, abstention is not

appropriate. The Court’s decision in Middlesex models

its decisions in earlier cases, where the principles of

Younger and its tests were held to be applicable in civil

cases. See Huffman v. Pursue, Ltd., 420 U.S. 592, 611-

12 (1975).

Like these cases, this is a federal civil action

under 42 U.S.C. § 1983. “Section 1983 was originally $1

of the Civil Rights Act of 1871. 17 Stat. 13. It was

modeled on § 2 of the Civil Rights Act of 1866, 14 Stat.

27, and was enacted for the purpose of enforcing the

provisions of the Fourteenth Amendment.” Mitchum v.

Foster, 407 U.S. 225, 238 (1972). “Congress enacted §

1983 and its predecessor, § 2 of the Civil Rights Act of

1866, 14 Stat. 27, to provide an independent avenue for

protection of federal constitutional rights. The remedy

was considered necessary because ‘state courts were

being used to harass and injure individuals, either

because the state courts were powerless to stop

deprivations or were in league with those who were

bent upon abrogation_of federally protected rights.”

Pulliam v. Allen, 466 U.S. 522, 540 (1984).

The cases cited by the Bar Association below,

Mockay v. Nesbett 412 F.2d 846 (9th Cir. 1969), cert.

denied, 396 U.S. 960 (1969), and Clark v. State of

Washington, 366 F.2d 678 (9th Cir. 1966), pre-date

Middlesex and Pulliam as well as this Court’s cases

applying the principles of Younger and its tests in civil

cases. Doe v. State Bar of California 582 F.2d 25 (9th

Cir. 1978) also precedes these cases and has no

contemporary bearing in this case.

A further and compelling ground for the exercise

of subject matter jurisdiction in this case are the

Washington Rules for Enforcement of Lawyer

Conduct.

ELC 2.12(a)(2002)provides in material part:

(a) Association an Its Agents. No cause of action

accrues in favor of a respondent lawyer or any

other person, arising from an investigation or

proceeding under these rules, against the

Association ... (including but not limited to its

staff, members of the Board of Governors, the

Disciplinary Board .. hearing officers,

disciplinary counsel ...) provided only that the

Association or individual acted in good faith. The

burden of proving bad faith in this context is on

the person asserting it.

There is no doubt that the Bar Association may

haled as a party in court for conduct encompassing an

infringement of its duty of good faith, and conversely,

for conduct comprising bad faith. There is no limitation

in its rules regarding the assertion of rights in state or

federal court, and as explained above, the bad faith

distinctions delineated in Younger and subsequent

cases provide a clear basis for subject matter

jurisdiction in cases like or similar to the present case.

Also, the rule does not reference, limit or preclude the

assertion of actions regarding pending proceedings

where evidence of a breach of good faith and/or

evidence of bad faith, harassment or other important

circumstances are present in a federa! court action,

The question is whether these ingredients are

present on a motion to dismiss or for a preliminary

injunction or whether there are genuine issues of

material fact on a motion for summary judgment that

warrant denial and/or relief with respect to the motion.

See Baffert, 332 F.3d, at 617, 621 (noting that if state

licensing proceedings are conducted in bad faith or to

harass the litigant, or other extraordinary

circumstances exist, the district court may exercise

jurisdiction even when the criteria for Younger

abstention are met).

All of the essential elements are present in this

case. The consequence of the holdings, when there is

competent evidence of a violation of the standards in

Middlesex to warrant a determination of personal

jurisdiction in the forum state, is to compel a plaintiff to

seek redress in a foreign jurisdiction far from the forum

where the effects of potentially devastating and

permanent injury, in this case, a federal action for a

suspension in violation of the Middlesex standards, are

felt. This is contrary to the Court’s analysis in the

World-Wide Volkswagen Corp. and Calder cases. This

Court has yet to address the vital but recurring issues

raised in this case, which blend the abstract and

difficult aspects of a wrongful suspension with the

nebulous principle of “fair play and substantial justice ”

as applied to a plaintiff in these undecided

circumstances.

Il. The Petition Presents the Important Federal

Question of Whether Venue in an Action

Against a Bar Association Under 42 U.S.C.§

1983 is Present in a Federal Judicial District

Outside the State Where Substantial

Activities Giving Rise to the Claim are

Alleged to Have Occurred.

The Court of Appeals indicated that the primary

obstacle preventing venue in the Central District o/

California was its decision in King v. Russell 963 F.2d

1301 (9th Cir. 1992), and the venue statute, 28 U.S.C. §

1391(b). This case presents facts considerably different

from those which the Court held insufficient to support

venue in King. Moreover, this case comes within the

1990 amendments to the venue statute, and the

holdings in a number of circuits which are, in a venue

context, parallel to or indistinguishable from this action.

28 U.S.C. § 1391(b) states that venue is proper in

a judicial district if “a substantial part of the events or

omissions giving rise to the claim occurred” in that

district. The statute was amended in 1990 in order to

broaden the venue provisions.’ The commentary

following the 1990 revisions to § 1391 states:

The fact that substantial activities

took place in District B does not disqualify

District A as proper venue as long as

“substantial” activities took place in A,

too. Indeed, District A should not be

disqualified even if it is shown that the

activities in District B were more

substantial, or even the most substantial.

Any other approach would restore the

pinpointing problem that created the

difficulties under the now discarded

“claim arose” standard. If the selected

district’s contacts are “substantial,” it

should make no difference that another’s

are more so, or the most so.

First of Michigan Corp. v. Bramlet, 141 F.3d

260, 263 (6th Cir. 1998) (citing David D. Siegel,

Commentary on the 1988 and 1990 Revisions of Section

1391(a)(2), 28 U.S.C.A. § 1391 (1993).

7 The amendments are iscussed in Cottman Transmission

Systems, Inc. v. Martino, 36 F.3d 291, 294 (3d Cir. 1994). Section

1391 was amended by the Judicial Improvements Act of 1990 in

response to a recommendation of the Federal Courts Study

Committee. See Report of the Fed. Courts Study Comm. 94

(Comm. Print 1990). The report pointed out that the reference in

the earlier version of section 1391(b) to the district “in which the

claim arose ” led to wasteful litigation whenever several different

forums were involved in transactions leading up to the dispute.

The House Report noted that the new language was in accord with

that recommended earlier by an American Law Institute study.

See H.R. Rep. No. 734, 101st Cong., 2nd Sess. 23 (1990), reprinted

in 1990 U.S.C.C.A.N. 6860, 6869.

This is a case involving federal question and civil

rights jurisdiction under 28 U.S.C. § 1331 and § 1343,

therefore involving 28 U.S.C. § 1391(b), as opposed to

diversity jurisdiction under 28 U.S.C. § 1391(a), but the

considerations encompassing substantial activities are

the same. See Bates v. C&S Adjusters, Inc., 980 F.2d

865, 867-68 (2nd Cir. 1992) (noting that the new statute,

28 U.S.C. § 1391(b),“does not, as a general matter,

require the District Court to determine the best

venue”; “we must determine only whether a

‘substantial part of the events ... giving rise to the

claim’ occurred in [this district]”); First of Michigan

Corp. 141 F.3d, at 263 (citing Bates, swpra, and Setco

Enterprises Corp. v. Robbins, 19 F.3d 1278, 1280-81

(8th Cir. 1994), and stating that under the amended

statute, 28 U.S.C. § 1391(a), courts “no longer ask which

district among the two or more potential forums is the

‘best’ venue[,] [rJather [they] ask whether the district

plaintiff chose had a substantial connection to the claim,

whether or not other forums had greater contacts.”).

In Nierbo v. Bethlehem Shipbuilding Corp., 308

U.S. 165, 168 (1939), this Court emphasized the

distinction between jurisdiction and venue, writing that

“(tlhis basic difference between the court’s power and

the litigant’s convenience is historic in the federal

courts.” In Leroy v. Grea W. United Corp., 443 US.

173, 180 (1979), this Court in part held, “The question of

personal jurisdiction, which goes to the court ’s power

to exercise control over parties, is typically decided in

advance of venue, which is primarily a matter of

choosing a convenient forum.”

In Leroy the Court wrote, “In most instances,

the purpose of statutorily specified venue is to protect

the defendant against the risk that a plaintiff will select

an unfair or inconvenient place of trial.” Jd., at 183-84.

In discussing venue, the Court weighed the actions in

Idaho before determining that venue in Texas was

inappropriate. /d., at 185-86.

Leroy v. Great W. United Corp. was decided

before the 1990 amendments to the venue statute. With

respect to the more recent amendments to 28 U.S.C. §

1391(b) (1991), many of the considerations in Leroy, for

example, the convenience of defendants and the

location of evidence and witnesses, are useful in

distinguishing between two or more plausible venues,

but the new statute does not, as a general matter,

require a District Court to determine the best venue.

Bates, 980 F.2d, at 867; Pecoraro v. Sky Ranch for

Boys, Inc., 340 F.3d 558, 563 (8th Cir. 2003).

Moreover, under the amended statute, it is clear

that there can be more than one district in which a

substantial part of the events giving rise to the claim

occurred. Every federal circuit that has addressed this

question is in basic agreement with this position."

8 See Cottman, 36 F.3d, at 294 (the Third Circuit concurred with

its holding in an earlier case, Tefal, S.A. v. Products Int 'l Co., 529

F.2d 495, 496 n.1 (8rd Cir.1976), stating “... if the infringement

occurred in other districts as well, then venue could be proper in

more than one district.”); Woodke v. Dahm, 70 F.3d 983, 985 (8th

Cir. 1995) (“The statute does not posit a single appropriate district

for venue; venue may be proper in any of a number of districts,

provided only that a substantial part of the events giving rise to

the claim occurred there.”); Myers v.Bennett Law Offices, 238 F.3d

1068, 1076 (9th Cir. 2001), holding that, “... at least one of the

‘harms’ suffered by Plaintiff is akin to the tort of invasion of

privacy and was felt in Nevada[;) [a}ecordingly, a substantial part

of the events giving rise to the claim occurred in Nevada.”).

The locus of the “events or omissions giving rise

to the claim,” as opposed to a “defendant’s contacts

with a particular district[,]” is the decided and implicit

standard for determining venue. See Uffner v. La

Reunion Francaise, S.A., 244 F.3d 38, 43 (ist Cir.

2001); Bates v. C & S Adjusters, Inc., 980 F.2d 865, 868

(2nd Cir. 1992); Cottman Transmission Systems, Inc. v.

Martino 36 F.3d 291, 294 (8d Cir. 1994); First of

Michigan Corp. v. Bramlet, 141 F.3d 260, 264 (6th Cir.

1998); Woodke v. Dahm, 70 F.3d 983, 985-86 (8th Cir.

1995); Myers v. Bennett Law Offices, 238 F.3d 1068,

1076 (9th Cir. 2001); Jenkins Brick Co. v. Brenner, 321

F.3d 1366, 1371 (11th Cir. 2003).

This does not precipitate the pinpointing

problem that created the difficulties under the now

discarded “claim arose” standard because, as the Courts

have held, there can be more than one district in which

a substantial part of the events giving rise to the claim

occurred. Where harm or wrongful activity occurs is “a

substantial part of the events or omissions giving rise

to the claim for purposes of venue.” See e.g., Myers, 238

F.3d, at 1076 (in a tort action, the locus of the injury is a

relevant factor, and holding that where one of the

harms is felt in the forum is a substantial part of the

events giving rise to the claim for purposes of venue);

Woodke, 70 F.3d, at 985-86 (requiring that the event

itself be wrongful in order to support venue).

The harm in this case, a suspension imposed in

alleged violation of the Middlesex standards, strikes its

mark in two venues. One is in Washington, where the

suspension is a public record, and the other, as the Bar

Association admits, is its scarlet letter, which petitioner

began wearing in California almost two years ago, and

may wear indefinitely for years from now. The harm is

immediate when a suspension or a disciplinary sanction

is imposed. It is reported by State Bar authorities to

the jurisdiction where the lawyer practices, and if he or

she is not licensed in that jurisdiction, must be reported

on public and private applications for employment, and

to State Bar authorities a lawyer registers with. There

are no uncertainties about the consequences of a

suspension or disciplinary sanctions. The harm occurs

in the district where that individual resides, and in

every jurisdiction where he or she is licensed, and if the

sanction is wrongful or imposed in: bad faith, as it is

alleged to be in this case, wrongful activity has

occurred in those districts because they are places

where harm or loss occurs. See Uffner, 244 F.3d, at 42-

43 ("[M]lany circuits have interpreted the 1990

amendment as evincing Congress's recognition that

when the events underlying a claim have taken place in ~

different places, venue may be proper in any number of

districts."). i

The Court of Appeals cited King v. Russell 963

F.2d 1301 (9th Cir. 1992) as the principle obstacle

preventing venue in the Central District of California,

but this case presents facts far different from those

held ineffectual to support venue in King. In that case,

the plaintiff filed suit in Arizona under the Truth in -

Lending Act against a number of defendants, alleging

that they had caused her injuries from the foreclosure

of a mortgage on her property in California. There

apparently was no dispute that most of the defendants

resided in California, and the only connection of Arizona

to the suit was plaintiffs residence in Arizona. The

Court of Appeals affirmed the dismissal of the action

under 28 U.S.C. § 1391(b) for improper venue, and

concluded that it would not be in the interests of justice

to transfer the case because the plaintiff “herself

expressed no interest in transfer and because ‘of the

fact that the action smacks of harassment and bad faith

on the plaintiffs part in that it appears that she filed it

here after repeatedly losing on at least some similar

claims in California.” 963 F.3d, at 1304.

The case actually supports the presence of venue

here because the District Court did not make findings

of intent on petitioner's part in not transferring the

case, and in fact, stated “...if you’re going to sue the

Washington State Bar, you’re going to have to sue

them in Washington, either in State Court or the

Federal Court ... depending on the theory of recovery

that you intend to bring.” The District Court also

stated, petitioner “can litigate those issues in

Washington.... [H]e has ... a 1983 case, so he can file in

the Federal Court in Washington.” Furthermore,

petitioner did not file this case after losing on similar

claims elsewhere.

The interest at stake, a legal entitlement to

practice law and earn a livelihood, free of tortious or

arbitrary state intrusion, is one of the more important

interests that can be adjudicated in the law. See Barry

v. Barchi, 443 U.S. 55, 64, 66 (1979) (in a due process

context, a professional horse trainer’s license is

protected). It is at least as important as the interest in a

libelous story involved in Calder, may be more

important than the right to privacy implicated in

Myers, and is more important than a corporation's risk

in the location of a suit seeking the invalidity of a state

takeover law decided in Leroy.

The loss of a license to practice one’s profession,

when it is taken wrongfully, and in violation of specific

federal and state standards, is, according to the

decisions, related to the principal question of venue.

The cases are appreciably clear that where harm or

wrongful activity occurs is “a substantial part of the

events or omissions giving rise to the claim for

purposes of venue.” At least one of the harms has

occurred in California. Venue is therefore proper in the

Central District of California.

CONCLUSION

For the foregoing reasons, a writ of certiorari

should issue to review the judgment of the Ninth

Circuit Court of Appeals.

Respectfully submitted,

John M. Keefe

Counsel of Record

Law Offices, JMYK, P.C.

1120 Fremont Avenue

South Pasadena, CA 91030

(626) 441-3263

No.

IN THE

Supreme Court of the United States

JMYK, P.C., AND JOHN M. KEEFE,

Petitioners,

WASHINGTON STATE BAR ASSOCIATION,

Respondent.

APPENDIX

TABLE OF CONTENTS

United States Court of Appeals, Ninth

Circuit, Memorandum Decision (April 13, 2005) la-2a

Motion to Dismiss Hearing Transcript,

June 14, 2004, Hon. Dickran Tevrizian ............ 3a-7a

Order Granting Defendant Washington State

Bar Association’s Request for Judicial Notice,

and Granting Without Prejudice Defendant’s

Motion to Dismiss for Improper Venue and Lack

of Subject Matter Jurisdiction (June 14, 2004) 8a-2la

(Any footnotes trial end of each document)

No. 04-56213

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JMYK, P.C., a California Professional Corporation;

JOHN M. KEEFE, individually,

Plaintiffs - Appellants,

Vv.

WASHINGTON STATE BAR ASSOCIATION,

Defendant - Appellee.

March 23, 2005**, Submitted** The panel unanimously

finds this case suitable for decision without oral

argument. See Fed. R. App. P. 34(a)(2).

April 13, 2005, Filed

COUNSEL: For JMYK, P.C., A CALIFORNIA

PROFESSIONAL CORPORATION, JOHN M.

KEEFE, ESQ. INDIVIDUALLY, Plaintiff

Appellants: John M. Keefe, Esq., LAW OFFICES OF

JOHN M. KEEFE, A Professional Corporation, South

Pasadena, CA.

For WASHINGTON STATE BAR ASSOCIATION,

Defendant - Appellee: Robert Dean Weldon,

WASHINGTON STATE BAR ASSOCIATION,

Seattle, WA; Joel S. Miliband, Esq., RUS, MILIBAND

& SMITH, Irvine, CA.

JUDGES: Before: B. FLETCHER, TROTT, and

PAEZ, Circuit Judges.

OPINION: MEMORANDUM*

John M. Keefe appeals the judgment of the district

court dismissing his civil rights action for lack of

subject matter jurisdiction and improper venue. We

have jurisdiction under 28 U.S.C. § 1291. We review for

an abuse of discretion a dismissal for improper venue.

Bruns v. NCUA, 122 F.3d 1251, 1253 (9th Cir. 1997). We.

affirm.

The district court correctly dismissed Keefe's civil

rights action for improper venue because it is

undisputed that the Washington State Bar Association

does not reside in, nor did a substantial part of the

events forming the basis of Keefe's claims take place in

the Central District of California. See 28 U.S.C. §

1391(b)\(1)-(2); King v. Russell, 963 F.2d 1301, 1304 (9th

Cir. 1992) (per curiam).

All pending motions are denied as moot.

AFFIRMED.

Footnotes

* This disposition is not appropriate for publication and

may not be cited to or by the courts of this circuit

except as provided by Ninth Circuit Rule 36-3.

04-2888

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

JMYK, P.C., a California Profesional Corporation;

JOHN M. KEEFE, individually

Plaintiffs,

vs.

WASHINGTON STATE BAR ASSOCIATION; and

John Does and Jane Does 1-10,

Defendants.

MOTION TO DISMISS FOR IMPROPER VENUE;

LACK OF SUBJECT MATTER JURISDICTION;

FAILURE TO STATE A CLAIM; FAILURE TO

SUE PARTIES CAPABLE OF BEING SUED

BEFORE THE HONORABLE DICKRAN

TEVRIZIAN, UNITED STATES DISTRICT

COURT JUDGE

APPEARANCES FOR:

Plaintiffs: JOHN M. KEEFE , PRO PER

Attorney at Law

1120 Fremont Avenue South

Pasadena, CA 91030

Defendant: LAUREL R ZAESKE, ESQ

Seventh Floor

600 Michelson Drive

Irvine, CA 92612

ROBERT F. WELDEN, ESQ.

(Appeared Telephonically)

Court Recorder: Ramona La Chapelle

Courtroom Deputy: Valencia R. Vallery

Transcriber: Victoria Manchester

Exceptional Reporting

Services Inc. P.O. Box 61850

Houston, Texas 77208

713 670-7774

Los /.ngeles, California;

Monday, June 14, 2004;

11:21 a.m.,

(Telephonic appearance by Robert Welden)

(Call to Order of the Court)

THE CLERK: Item, CV 04-2888, J.M.Y.K., P.C.

et al versus Washington State, Motion to Dismiss for

Improper Venue; Lack of Subject Matter Jurisdiction;

Failure to State a Claim; Failure to Sue Parties Capable

of Being Sued.

Counsel and/or parties, please make your

appearances,

MR. KEEFE: John Keefe for the plaintiffs, your

Honor. I've gone over the Tentative Ruling.

MS. ZAESKE : Good morning, your Honor,

Laurel Zaeske appearing on -- local counsel appearing on

behalf of Washingvon State Bar Association and Mr.

Welden has requested to appear telephonically.

THE COURT: Yes. We're going to get Mr.

Welden here telephonically.

(Dialing Mr. Welden)

MR. WELDEN: Hello, this is Robert Welden.

THE COURT: Mr. Welden?

Mr. WELDEN: Yes.

THE COURT: This is Judge Tevrizian. You're on

the record in the case of J.M.Y.K., P.C., a California

professional corporation, John M. Keefe, individually,

plaintiffs versus Washington State Bar Association, Civil

Case Number CV 04-2888-DT.

All right. I'm going to have counsel announce

their appearances for the record.

MR. KEEFE: John Keefe for the plaintiffs.

MR. WELDEN: Robert Welden for the

defendant Washington State Bar Association.

MS. ZAESKE: Laurel Zaeske, local council for

the defendant, Washington State Bar Association.

THE COURT: All right. I've prepared a 12 Page

Tentative Order, in this case, which I've circulated to the

attorneys that are present in Court. The Order is an

Order granting the defendant, Washington State Bar

Association's Request for Additional Notice and

granting without prejudice Defendant's Motion to

Dismiss for Improper Venue and Lack of Subject Matter

Jurisdiction.

I did receive some opposition that was filed, I

believe, it was on June the 10th. I received it today

because Friday the Court was closed for President

Reagan's funeral. However, I have reviewed the late

opposition entitled, "Plaintiff's Supplemental Response, a

Memorandum and Opposition to the Motion to Dismiss"

and will not change my Tentative Order in this

particular case.

Mr. Keefe, let me hear from you.

MR. KEEFE: Okay, your Honor. In going over

the Tentative Ruling, there may he a few areas subject

to a Motion for Reconsideration that may need to be

studied. And with that said, we may file a Motion for

Reconsideration, | don't know yet.

THE COURT: Well, a Motion § for

Reconsideration, you know -

MR. WELDEN: Im sorry, your Honor, | can

barely hear you.

THE COURT: a Motion for Reconsideration,

Mr. Keefe, is limited as to what you can ask the Court

to reconsider. I mean, it has to be a change in the law or

some newly discovered facts. And, so I tell you that

up front. But, right now there is still venue here in the

State of California, specifically, the Central Vista

(phonetic) California with regard to the State of

Washington disciplining and/or bidding their members

of their State Bar. So, I don't see how I have any

jurisdiction.

MR. KEEFE: Okay. What we'd ask in that

regard would be permission to amend the complaint to

show that consentaneous (phonetic) with the statute

that part of the events occurred in this district giving

rise to venue. And I believe that I can show that -- we

can show that.

THE COURT: No, I won't give you an

opportunity to amend the complaint. This is a case -- if

you're going to sue the Washington State Bar, you're

gong to have to sue them in Washington, either in the

State Court or the Federal Court up there depending

on the theory of recovery that you intend to bring. The

Washington State Bar does not do business in the state

of California. They have no general or specific

jurisdiction that I evoke this Court's jurisdiction.

MR. KEEFE: Okay. Well, we don't know at this

point whether there's general jurisdiction because there

hasn't been any discovery. General jurisdiction would, of

course, be based on its general contacts with the state of

California and we don't know that at this point for that

would be subject to discovery.

With respect to specific jurisdiction, its my

position -- our position that the supplemental

proceedings and the First Amended Claims arising out

of the supplemental proceedings provide for venue in

this district. I realize that a part of the Myers (phonetic)

case deals with persona! jurisdiction, but it also deals

with the venue, that part of the decision by the Ninth

Circuit is short, it's brief. But, it shows that - - it shows

just on that one claim, I think, was invasion of

privacy; like the Gordy (phonetic) detailed in this case,

defamation; the effects were defamation dealt in

California in the Myers case and invasion of privacy and

the effects of that dealt in California. I realize that the

effects deal with personal jurisdiction but when you read

that part of the decision, there's no doubt that

terminology is considered in that discussion with venue.

And just that one aspect of it, invasion of privacy, was

sufficient to give the Court in Nevada, jurisdiction. And

that's what we can show -- I can show here. The effects

are so detrimental, it's constant and continual and it's

potentially life long. The effects are here in California. I

no ionger reside in Washington --

THE COURT: But, Mr.

MR. KEEFE: — I reside here in California.

THE COURT: - yeah, but it doesn't make any

difference. All the activity, in this particular case,

occurred in the State of Washington. And just because

you move around doesn't give you the right to sue on

every --

MR. KEEFE: No.

THE COURT: - vocation that you move to in

the United. States. That’ the problem. I mean, even

with regard, you know, to convenience to witnesses; all

the State Bar officials of Washington are located in the

state of Washington. And, you know when you balance

all of this out, this is not a change of venue case, at this

particular point; you balance everything out, it’s going

to balance in favor of the state of Washington.

MR. KEEFE : okay. Well, I --

THE COURT: I mean, I really have no --

MR. KEEFE : -- okay

THE COURT: -- leeway here --

MR. KEEFE : Okay

THE COURT: — I'm going to grant tae

defendant's Motion to Dismiss without prejudice so you

can litigate in the State of Washington.

Mr. Welden, anything else you want to state for

the record?

MR. WELDEN: Well, what I want to say, your

Honor, I would ask that it be dismissed with prejudice,

but I understand the Court's Ruling.

THE COURT: No, because if he, you know, has

issues, he can litigate these issues in Washington;

minus that, you know, this jurisdiction, this District

Court has no jurisdiction over that, over the claims that

he's asserting here.

MR. WELDEN: Correct. And my position would

be that if the District Court in Washington would not

have subject matter jurisdiction either.

THE COURT: Well, he has -- what is it — a 1983

case; so he can file in the Federal Court in Washington.

MR. KEEFE: Yes.

THE COURT: I'm going to stand with the

Tentative order, the proposed Judgment that you

lodged, I'll get back to you --

MR. KEEFE: What will --

10a

THE COURT: -- I can modify it because it'll be

dismissed -- there's no need for a Judgment. I'm just

going to issue my order,

MR. WELDEN: All right.

THE COURT: Thank you.

MR. KEEFE: Thank you, sir. (This

proceeding was adjourned at 11:30 a. m.)

lla

04-2888

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

JMYK, P.C., a California Profesional Corporation;

JOHN M. KEEFE, individually

Plaintiffs,

Vs.

WASHINGTON STATE BAR ASSOCIATION; and

John Does and Jane Does 1-10,

Defendants.

ORDER GRANTING DEFENDANT WASHINGTON

STATE BAR ASSOCIATION’S REQUEST FOR

JUDICIAL NOTICE; AND GRANTING WITHOUT

PREJUDICE DEFENDANT'S MOTION TO

DISMISS FOR IMPROPER VENUE AND LACK OF

SUBJECT MATTER JURISDICTION

Filed 6/14/04, Entered 6/15/04

I. Background

This action is brought by Plaintiffs JMYK, P.C., a

California Professional Corporation and John M. Keefe

(collectively, "Plaintiffs") against Defendant

Washington State Bar Association ("Washington Bar")

for relief under 42 U.S.C. § 1983. |

A. Factual Summary

12a

The following facts are alleged in the Amended

Complaint ("Complaint"):

In April 2002, the Washington Bar filed a complaint

(‘Bar Complaint") against Plaintiff John Keefe

(hereinafter, “Plaintiff’) arising out of an appeal from a

summary judgment in an _ unrelated civil

action.'(Complaint, Par. 5.). The Bar Complaint alleges

that a conflict of interest in the appeal violated the

Rules of Professional Conduct. (Id. at Par. 6.) It asserts .

that Plaintiff did not inform the clients that he intended

to argue that the order in the unrelated civil action

should not have been entered against him and that he

did not obtain the clients’ written and/or informed

consent to the assertion of this argument. (Id.) it

further alleges that Plaintiff violated the Rules of

Professional Conduct in seeking approved extensions in

the appeal. (Id.)

The Bar Complaint is fraudulent. (Id. at Par. 7.) The

Washington Bar, through its agents, committed perjury

in administering and filing the Bar Complaint. (Id. at

Par. 8.) The evidence established that Plaintiff

consulted with and explained the arguments in the

appeal to the clients and that the clients gave their

informed consent to the conflict of interest. (Id. at Par.

9.) The clients were also informed of, and consented to,

the approved extensions in the appeal. (Id. at Par. 11.)

The hearing on the Bar Complaint occurred on April 24

and 25, 2003, in Seattle Washington. (Id. at Par. 13.) At

the hearing, the Washington Bar refused to let the

clients testify on Plaintiff's behalf. (Id.) It refused to

accept their sworn statements, and it shut down

Plaintiffs defenses. (Id.) It refused to grant Plaintiff's

13a

motion for disqualification of the hearing officer months

in advance of the hearing when the rules permit a

change of judge as a matter of right without

substantiating, proving or supporting the claim of

prejudice. (Id.).

At the hearing, during the course of Plaintiff's

testimony, the Washington Bar's hearing officer said

that "the proceedings were fixed," and further stated,

“You still have five years to serve on your sentence, for

suing." (Id. at Par. 14.).

At the close of the proceedings, Plaintiff requested an

original tape or disk of the proceeding. (Id. at Par. 18.).

The Washington Bar's stenographer would not agree to

this or to copies of the tapes or disks. (Id.).

On December 16, 2003, the Washington Bar issued a

decision suspending Plaintiff from the practice of law.

(id. at Par. 19.).

In the latter part of March 2004, the Washington Bar,

through its agents, filed a motion for supplemental

proceeding alleging that “reasonable cause" exists “to

believe that plaintiff is suffering from a mental or

physical condition that renders him incapable of

defending the disciplinary proceeding." (Jd. at Par. 21.)

Plaintiff filed a response to the motion stating that the

Washington Bar's motion for such a proceeding was

contradictory and completely lacking in factual or legal

support. (1d. at Par. 22.)

On March 30, 2004, the Washington Bar issued an order

for a supplemental disability proceeding stating that,

"Reasonable cause exists to believe that Respondent. . .

l4a

is incapable of defending disciplinary proceedings

because of mental or physical incapacity." (Id. at Par.

23.).

Based on the foregoing, Plaintiff brings a claim under

42 U.S.C. § 1983. He alleges that the Washington Bar

has permitted and ratified a pattern and practice of

discrimination by its agents, has maintained no systein

of review or has failed to identify instances of illegal,

wrongful and improper conduct or discipiine, more

closely supervise, or retrain specific agents who

illegally, wrongfully and improperly engaged in such

conduct and employed such discipline, and has failed to

act within its guidelines. (Id. at Par. 28.) The

Washington Bar and its agents acted outside their

authority or otherwise beyond its guidelines in

administering and initiating such proceedings against

Plaintiff and during the proceedings resulting in

Plaintiff's suspension. (Id. ai Par. 29.) The Washington

Bar and its agents have subjected Plaintiff to a

deprivation of the constitutionally protected right of

freedom of speech. (Id. at Par. 30.)

B. Procedural Summary

On April 26, 2004, Plaintiffs filed the Complaint.

On April 30, 2004, Plaintiffs filed an Amended

Complaint.

On May 17, 2004, the Washington Bar filed a Motion to

Dismiss far Improper Venue; Lack of Subject Matter

Jurisdiction; Failure to State a Claim Upon Which

Relief Can Be Granted; and Failure to Sue Parties

Capable of Being Sued; For Disqualification; and for

15a

Entry of Judgment, which is currently before this

Court.

II. Discussion

A. Standard

1. Improper Venue

Under Federal Rule of Civil Procedure 12(b)(3), an

action may be dismissed based on improper venue. 28

U.S.C. § 1391 provides the venue for cases founded on

diversity of citizenship and for cases not founded solely

on diversity of citizenship.

2. Lack of subject matter jurisdiction

Federal courts are courts of limited jurisdiction.

Federal courts are “presumed to jack jurisdiction in a

particular case unless the contrary affirmatively;

appears." Stock West Inc. v. Confederated Tribes, 873

F.2d 1221, 1225 (9th Cir. 1989). Thus, when a

defendant brings a motion to dismiss for lack of

subject matter jurisdiction pursuant to Fed. R. Civ. P.

12(b)\(1), the plaintiff bears the burden of establishing

jurisdiction. See Kokkonen v, Guardian Life Ins., 511

U.S. 375, 378, 114 S. Ct. 1673, 1675 (1994).

B. Judicial Notice

The Washington Bar requests that this Court take

judicial nonce of the following facts:

1. Washington Rules of Court provide the sole

authority for admitting attorneys to practice in

l6a

Washington as set forth in Washington Admission to

Practice Rule 1.

2. Washington Rules of Court establish the

purposes of the Washington State Bar Association as

set forth in Washington General Rule 12.

3. Washington Rules of Court provide the sole

authority for disciplining attorneys as set forth in

Washington Rules for Enforcement of Lawyer

Conduct ("ELC") Rule 2.1.

4. Washington Rules of Court provide for

exoneration from liability for the Washington Sate

Bar Association, its officers and agents and others

acting under the authority of the Washington Rules

for Enforcement of Lawyer Conduct by ELC 2.12.

5. John M. Keefe was admitted to practice law in

the State of Washington on November 10, 1988 by

order of the Washington Supreme Court and is an

active member of the Bar.

6. John M. Keefe is not admitted to practice law in

the State of California according to the on-line records

of the State Bar of California that can be viewed at the

State Bar of California web site

http://www.calbar.ca.gov/state/calbar/calbar home.jsp.

A court must take judicial nonce if a party requests it

and supplies the court with the requisite information.

Fed. R. Evid. 201(d). "A judicially noticed fact must be

one not subject to reasonable dispute in that it is either

(1) generally known within the territorial jurisdiction of

the trial court or (2) capable of accurate and ready

17a

determination by resort to sources whose accuracy

cannot reasonably be questioned." Fed. R. Evid. 201(b).

This Court may take judicial nonce of facts outside the

pleadings without converting the motion to one for

summary judgment. See Mack v. South Bay Beer

Distributors, 798 F'.2d 1279, 1282 (9th Cir. 1986)(citing

Sears, Roebuck & Co, v. Metropolitan Engravers Ltd.,

245 F.2d 67, 70 (9th Cir. 1956)).

A court may take judicial nonce of "records and reports

of administrative bodies." Mack, 798 F.2d at 1282 (citing

Interstate Natural Gas Co, v. Southern California Gas

Co., 209 F.2d 380) 385 (9th Cir. 1953)). This Court may

take judicial notice of its own records, and documents

that are public records and capable of accurate and

ready confirmation by sources that cannot reasonably

be questioned. See MGIC Indem. Corp, v. Weisman,

803 F.2d. 500, 504 (9th Cir. 1986) (courts may take

judicial notice of matters of public record outside the

pleadings); United States v. Wilson, 631 F.2d 118, 119

(9th Cir. 1980) (courts may take judicial notice of their

own records).

The Washington Bar provides the requisite sources in

support of its request for judicial notice. As such, this

Court finds that the request for judicial notice of the

facts presented meet the criteria set forth in Rule

201(b). This Court, hereby grants the Washington Bar's

request for judicial notice.

C. Analysis

The Washington Bar seeks to dismiss this Complaint on

various grounds, including improper venue, lack of

subject matter jurisdiction, failure to state a claim, and

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failure to sue proper parties. For the reasons explained

below, this Court finds that dismissal is proper far

improper venue, and even if venue were proper,

dismissal is warranted for lack of subject matter

jurisdiction.”

1, Dismissal is warranted for improper venue

Plaintiff contends that this Court has subject matter

jurisdiction based on a federal question, 28 U.S.C. §

1331, and the assertion of civil rights, 28 U.S.C. §

1391(b). 28 U.S.C. § 1391(b) governs venue for actions

based on a federal question. It provides for venue as

follows:

in (1) a judicial district where any defendant resides, if

all defendants reside in the same State, (2) a judicial

district in which a substantial part of the events or

omissions giving rise to the claim occurred, or a

substantial part of property that is the subject of the

action is situated, or (3) a judicial district in which any

defendant may be found, if there is no district in which

the action may otherwise be brought.

Here, it is undisputed that Defendant the Washington

Bar resides within the State of Washington. Plaintiff,

then, premises venue in this district on the second

factor, claiming that "a substantial part of the events or

omissions giving rise to the claim occurred" in this

district. This Court disagrees with Plaintiff.

Contrary to Plaintiff s assertions, a substantial part, if

not all, of the events underlying the present action

occurred in the State of Washington. Plaintiff is

admitted to practice law in Washington. (Request for

19a

Judicial Notice, Par. 4 and Exh. 5.) He was the attorney

in a case in the Superior Court of. the State of

Washington for King County, which gave rise to the

disciplinary proceeding of Plaintiff. (Complaint, Par. 5;

Welden Decl., Par. 7 and Exh. 2.). The disciplinary

proceeding was conducted before the Disciplinary

Board of the Washington State Bar Association.

(Complaint at Par. 13; Welden Decl. at Par. 8.) Plaintiff

filed a Notice of Appeal of that decision of the hearing

officer. (Welden Decl., Exh. 3.) The supplemental

proceeding concerning Plaintiffs ability to defend

himself is currently pending in Washington. (Complaint

at Pars. 21-23; Welden Decl. at Par. 12.)

Plaintiff ignores these facts and instead asserts

arguments based on personal jurisdiction - that he is a

citizen of California and suffered harm in California as a

result of the Washington Bar's acts. To begin with,

Plaintiffs general arguments regarding the "effects

test" and personal jurisdiction are misplaced here as

there is no issue of personal jurisdiction. Plaintiff does

cite the case of Myers v, Bennett Law Offices, 238 F.3d

1068 (9th Cir. 2001), wherein the Court found venue to

be correct in the place where the plaintiff suffered

“harm.” Myers, 238 F.3d at 1076. However, the Court's

determination was tied to its previous analysis of

personal jurisdiction and its finding that the

defendant's conduct was “expressly aimed" at the forum

state. Here, as set forth above and alleged by Plaintiff

himself in the Complaint, all underlying actions,

including the Washington Bar's conduct, arose from

events occurring in the State of Washington. Indeed,

the disciplinary action arose from Plaintiff's license and

practice of law in the State of Washington. (Welden

Decl., Par. 6.). Nothing in the Complaint is tied to this

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forum other than Plaintiffs citizenship. However, the

statute is clear that venue is proper only in the judicial

district of the defendant's residence or where a

substantial part of the events giving rise to the claim

occurred. As such, this Court finds that Myers is

inapplicable and that venue is not proper in this judicial

district. Dismissal for improper venue is therefore

warranted.

2. Dismissal is warranted for lack of subject matter

jurisdiction

The Washington Bar argues that this Complaint should

be dismissed because the District Court has no

jurisdiction to review a State Bar disciplinary

proceeding. This Court agrees with the Washington

Bar; even if venue were proper in this district,

dismissal is proper on this separate and independent

basis. First, this Court notes that, contrary to Plaintiffs’

allegations, the evidence submitted by the Washington

Bar shows that Plaintiffs license to practice law in the

State of Washington has not been suspended yet.’ After

the disciplinary proceedings were conducted, the

hearing officer entered Findings of Fact, Conclusions of

Law and a Recommendation that Plaintiff be

suspended from the practice of law for 6 months.

(Welden Decl., Par. 10 and Exh. 2.) Plaintiff filed an

appeal seeking "review by the Disciplinary Board of the

Washington State Bar Association of the decision of the

hearing officer. . . ." (Id. at Exh. 3.) Subsequently,

supplemental proceedings were ordered to determine

Plaintiffs ability to defend himself, and these

supplemental proceedings are currently pending.

(Complaint, Par. 23.) As such, it appears that Plaintiff's

Complaint here is premature at best since no official

2la

action has been taken with respect to Plaintiffs

suspension, and he has filed an appeal with respect to

the disciplinary proceedings.

Nonetheless, even assuming that Plaintiff was timely

challenging his suspension he alleges in the Complaint

(see Complaint at Par. 19), it is clear that this Court

lacks subject matter jurisdiction to review such action.

"The Ninth Circuit has held explicitly that federal

district courts do not have jurisdiction to review state

court orders concerning the discipline of state bar

members." Doe, v, State Bar of California, 415 F. Supp.

308, 311 (N.D. Cal. 1976), affd, 582 F.2d 25 (9th Cir.

1978)(stating "it is our opinion that the trial judge

correctly concluded that the federal courts do not have

jurisdiction to interfere with disciplinary proceedings of

the State Bar of California for the reasons stated in his

opinion").* Specifically, in a case in which the Ninth

Circuit affirmed a district court's dismissal of an action

brought by a lawyer to enjoin and declare invalid an

order of the Supreme Court of Alaska suspending him

from the practice of law for one year, the Ninth Circuit

upheld the rule that:

orders of a state court relating to the admission,

discipline, and disbarment of members of its bar may be

reviewed only by the Supreme Court of the United

States on certiorari to the state court, and not by means

of an original action in a lower federal court. The rule

serves substantial policy interests arising from the

historic relationship between state judicial systems and

the members of their respective bars, and between the

state and federal judicial systems. We are persuaded

that it is sound.

22a

MacKay v. Nesbett, 412 F.2d 846 (9th Cir. 1969). As

such, even if Plaintiff's Complaint properly alleges that

he has been suspended from the practice of law, this

Court lacks jurisdiction to review such action.

In his so Plaintiff renee on es case of

457 US. 423, 102 S. Ct. 2515, 73 L. Ed. 2d 116 (1982),

and argues that the cases cited above predate

Middlesex. However, Middlesex is not applicable here.

At issue in Middlesex was whether a federal court

should abstain from considering a challenge to the

constitutionality of disciplinary rules that are the

subject of pending state disciplinary proceedings within

the jurisdiction of the New Jersey Supreme Court.

Middlesex, 457 U.S. at 2518. Here, Plaintiff is not

challenging the constitutionality of any particular rules;

rather, he is challenging the specific actions taken at his

hearing. More specifically, he alleges that the

disciplinary proceeding was conducted in a manner

unfair to him. Such allegations, however, cannot be

entertained by this Court. See Rosenthal v. Justices of

the Supreme Court of California, 910 F.2d 561, 566 (9th

Cir. 1990)(holding that to the extent plaintiff challenges

the fairness of the hearings, a review by the California

Supreme Court is proper, and only the United Stakes

Supreme Court has jurisdiction to review a decision by

that Court).

In sum, it appears that Plaintiff's current action is

premature as he has not been suspended from the

practice of law. Nonetheless, even assuming that his

allegation of suspension is correct, this Court is without

jurisdiction to review state court orders concerning the

23a

discipline of state bar members. As such, dismissal for

lack of subject matter jurisdiction is warranted.

IL]. Conclusion

Accordingly, this Court grants without prejudice

Defendant Washington State Bar Association's Motion

to Dismiss for Improper Venue and Lack of Subject

Matter Jurisdiction.

IT ISSO ORDERED.

Dickran Tevrizian,

Judge United States District Covert

Footnotes

‘ Plaintiff was the attorney in this unrelated civil action,

and the summary judgment was for attorney fees and

costs in the amount of $47,865.90 entered against

“plaintiffs and/or their attorney of record."

“Initially, this Court notes that the Washington Bar

properly argues that Plaintiff Keefe can only represent

himself. Plaintiff Keefe purports to represent

"J.M.Y.K., P.C., a California Professional Corp."

However, "[aJn appearance before the Court on behalf

of another party or a class may be made only by an

attorney admitted to the Bar of or permitted to practice

before this Court." Local Rule 83-2.1. Here, according to

the pleadings on file, Keefe is barred in Washington, as

he uses his Washington State Bar attorney number.

See also Welden Decl., Par. 13 (noting that a search of

records on-line of the State Bar of California does not

24a

show that John M. Keefe is admitted to practice in

California). Furthermore, "(a] corporation including a

limited Liability corporation, a partnership including a

limited liability partnership, an unincorporated

association, or a trust may not appear in any action or

proceeding pro se." Local Rule 83-2.10.1. Thus, Plaintiff

Keefe's purported representation of J.M.Y.K., P.C., a

California Professional Corporations violates the Local

Rules of the Central District and is improper.

*The Court will dismiss an action for lack of subject

matter jarisdiction under Rule 12(b)(1) only where the

complaint facially fails to allege grounds for federal

subject matter jurisdiction (accepting the allegations as

true), or where extrinsic evidence is considered and the

court determines that the jurisdictional claims lack

merit. Roberts v, Corrothers, 812 F.2d 1173, 1177 (9th

Cir. 1987).

‘The Washington Rules far Enforcement of Lawyer

Conduct Rule 2.1 provides:

The Washington Supreme Court has_ exclusive

responsibility in the state to administer the lawyer

discipline and disability system and has inherent power

to maintain appropriate standards of professional

conduct and to dispose of individual cases of lawyer

discipline and disability. Persons carrying out the

functions set forth in these rules act under the Supreme

Court's authority.

25a

CONSTITUTIONAL

PROVISION INVOLVED

28 U.S.C. Sec. 1391. Venue generally

(b) A civil action wherein jurisdiction is not founded

solely on diversity of citizenship may, except as

otherwise provided by law, be brought only in

(1) a judicial district where any defendant resides, if all

defendants reside in the same State,

(2) a judicial district in which a substantial part of the

events or omissions giving rise to the claim occurred, or

a substantial part of property that is the subject of the

action is situated, or

(3) a judicial district in which any defendant may be

found, if there is no district in which the action may

otherwise be brought.

42 U.S.C. 1983. Civil action for deprivation of rights

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State or

Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United States

or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to

the party injured in an action at law, suit in equity, or

other proper proceeding for redress, except that in any

action brought against a judicial officer for an act or

omission taken in such officer's judicial capacity,

injunctive relief shall not be granted unless a

declaratory decree was violated or declaratory relief

was unavailable. For the purposes of this section, any

Act of Congress applicable exclusively to the District of

26a

Columbia shall be considered to be a statute of the

District of Columbia.

Washington Siate Court Rules: Rules. of

Professional Conduct

ELC 2.12 EXONERATION FROM LIABILITY

(a) Association and Its Agents. No cause of action

accrues in favor of a respondent lawyer or any other

person, arising from an investigation or proceeding

under these rules, against the Association, or its

officers or agents (including but not limited to its staff,

members of the Board of Governors, the Disciplinary

Board, review committees, and hearing panels; hearing

officers; disciplinary counsel; adjunct investigative

counsel; adjunct review committee members; lawyers

appointed under rule 7.7, 8.2(c)(2), or 8.3(d)3);

probation officers appointed under rule 13.8; or any

other individual acting under authority of these rules)

provided only that the Association or individual acted

in good faith. The burden of proving bad faith in this

context is on the person asserting it. The Association

must defend any action against an officer or agent of

the Association for actions taken in good faith under

these rules, bear the costs of that defense, and

indemnify the officer or agent against any such

judgment.

(b) Grievants and Witnesses. Communications to the

Association, Board of Governors, Disciplinary Board,

review committee, hearing officer or panel, disciplinary

counsel, adjunct investigative counsel, Association

staff, or any other individual acting under authority of

these rules, arc absolutely privileged, and no lawsuit

predicated thereon may be instituted against any

27a

grievant, witness, or other person providing

information.

Washington State Court Rules: Rules of

Professional Conduct

RULE 1.2 SCOPE OF REPRESENTATION

(a) A lawyer shall abide by a client's decisions

concerning the objectives of representation, subject to

sections (c), (d), and (e), and shall consult with the client

as to the means by which they are to be pursued. A

lawyer shall abide by a client's decision whether to

accept an offer of settlement of a matter. In a criminal

case, the lawyer shall abide by the client's decision,

after consultation with the lawyer, as to a plea to be

entered, whether to waive jury trial and whether the

client will testify.

(b) A lawyer's representation of a client, including

representation by appointment, does not constitute an

endorsement of the client's political, economic, social or

moral views or activities.

the limitation is reasonable under the circumstances

and the client consents after consultation. An

agreement limiting the scope of a representation shall

consider the applicability of Rule 42 to the

representation.

(d) A lawyer shall not counsel a client to engage, or

assist a client, in conduct that the lawyer knows is

criminal or fraudulent, but a lawyer may discuss the

legal consequences of any proposed course of conduct

28a

with a client and may counsel or assist a client to make

a good faith effort to determine the validity, scope,

meaning or application of the law.

(e) When a lawyer knows that a client expects

assistance not permitted by the Rules of Professional

Conduct or other law, the lawyer shall consult with the

client regarding the relevant limitations on the lawyer's

conduct.

(f) A lawyer shall not willfully purport to act as a

lawyer for any person without the authority of that

person.

Washington State Court Rules: Rules of

Professional Conduct

RULE 1.7 CONFLICT OF INTEREST;

GENERAL RULE

(a) A lawyer shall not represent a client if the

representation of that client will be directly adverse to

another client, unless:

(1) The lawyer’ reasonably believes the

representation will not adversely affect the relationship

with the other client; and ~

(2) Each client consents in writing after consultation

and a full disclosure of the material facts (following

authorization from the other client to make such a

disclosure).

(b) A lawyer shall not represent a client if the

representation of that client may be materially limited

by the lawyer's responsibilities to another client or to a

third person, or by the lawyer's own interests, unless:

(1) The lawyer -reasonably believes the

representation will not be adversely affected; and

29a

(2) The client consents in writing after consultation

and a full disclosure of the material facts (following

authorization from the other client to make such a

disclosure). When representation of multiple clients in a

single matter is undertaken, the consultation shall

include explanation of the implications of the common

representation and the advantages and risks involved.

not a public officer or employee represents a discrete

governmental agency or unit that is part of a broader

governmental entity, the lawyer's client is the

particular governmental agency or unit represented,

and not the broader governmental entity of which the

agency or unit is a part, unless:

(1) Otherwise provided in a written agreement

between the lawyer and

the governmental agency or unit; or

(2) The broader governmental entity gives the

lawyer timely written notice to the contrary, in which

case the client shall be designated by such entity.

Notice under this subsection shall be given by the

person designated by law as the chief legal officer of the

broader governmental entity, or in the absence of such

designation, by the chief executive officer of the entity.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.