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David A. Clark
General Counsel/Deputy Bar Counsel
Nevada Bar No. 4443
State Bar of Nevada
600 East Charleston Blvd.
Las Vegas, Nevada 89104
(702) 382-2200
Attorneys for Defendants
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
JACOB HAFTER, ESQ., )
) Case No.: 2:10-CV-00553-PMP-LRL
Plaintiff, )
v. )
)
ROB BARE, in his official capacity; DAVID ) DEFENDANTS' REPLYTO PLAINTIFF'S
CLARK, in his official capacity; GLENN ) OPPOSITION TO MOTION TO DISMISS
MACHADO, in his official capacity; PHIL ) SECOND AMENDED COMPLAINT
PATTEE, in his official capacity; DOE )
Defendants Ithrough X, inclusive; and ROE)
CORPORATIONS Athrough Z, inclusive, )
Defendants. '
I.
PLAINTIFF CONCEDES THAT THIS COURT
SHOULD ABSTAIN UNDER YOUNGER.
In his Opposition, such that it is, Plaintiff concedes, "Defendants bring their Motion on
the grounds that the Younger [sic] abstention doctrine prevents this Court from interfering
with their ongoing disciplinary process, now that a formal complaint has been filed with
against Plaintiff. Plaintiff does not disagree with this point." Plaintiffs Opposition, p. 2, lines
19-21.
Frankly, that should be the end to the inquiry and Defendants' motion to dismiss
should 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. Clark
General Counsel/Deputy Bar Counsel
2 Nevada Bar No. 4443
State Bar of Nevada
3 600 East Charleston Blvd.
Las Vegas, Nevada 89104
4 (702) 382-2200
5 Attorneys for Defendants
6
UNITED STATES DISTRICT COURT
7
DISTRICT OF NEVADA
8
JACOB HAFTER, ESQ.,
)
9
) Case No.: 2:10-CV-00553-PMP-LRL
Plaintiff,
)
10 v.
)
)
11
ROB BARE, in his official capacity; DAVID ) DEFENDANTS' REPLY TO PLAINTIFF'S
CLARK, in his official capacity; GLENN ) OPPOSITION TO MOTION TO DISMISS
12 MACHADO, in his official capacity; PHIL ) SECOND AMENDED COMPLAINT'
PATTEE, in his official capacity; DOE )
13 Defendants I through X, inclusive; and ROE)
CORPORATIONS A through Z, inclusive,
14
Defendants.
15
16 I.
PLAINTIFF CONCEDES THAT THIS COURT
17 SHOULD ABSTAIN UNDER YOUNGER.
18 In his Opposition, such that it is, Plaintiff concedes, "Defendants bring their Motion on
19 the grounds that the Younger [sic] abstention doctrine prevents this Court from interfering
20 with their ongoing diSCiplinary process, now that a formal complaint has been filed with
21 against Plaintiff. Plaintiff does not disagree with this point." Plaintiff's Opposition, p. 2, lines
22 19-21.
23 Frankly, that should be the end to the inquiry and Defendants' motion to dismiss
24 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 under
special circumstances." Id, at 749 (citing 28 U.S.C. 2283, "A court of the United States
may not grant an injunction to stay proceedings in a State court except as expressly
authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or
effectuate its judgments."). The Younger Court further held that, "declaratory relief is also
improper when a prosecution involving the challenged statute is pending in state court at the
time the federal suit is initiated." Id at n. 2.
In Middlesex County Ethics Committee v. Garden State BarAss'n, 457 U.S. 423, 102
S. Ct. 2515, 73 L. Ed. 2d 116 (1982), the Supreme Court extended the abstention doctrineto
attorney discipline cases,
The importance of the state interest in the pending state judicial proceedings and in the
federal case calls Younger abstention into play. So long as the constitutional claims of
respondents can be determined in the state proceedings and so long as there is no showing
of bad faith, harassment, or some other extraordinary circumstance that would make
abstention inappropriate, the federal courts should abstain, (emphasis added).
Id. at 435. See also, Hirsh v. Justices of Supreme Court of State of California, 67 F.3d 708
(9th Cir. 1995) (affirming dismissal on abstention grounds of suit brought to enjoin
disciplinary proceedings and seeking declaratory relief).
However, Plaintiff clings to the argument that nothing in Younger prevents the case
from proceeding with respect to the due process violations and requests that he be allowed
to amend his complaint or stay these proceedings. Opposition, 2:23-27. This is simply
wrong. The quoted language above plainly states that as long as the constitutional claims
can be determined in the state proceedings, the federal courts should abstain.
Plaintiff argues tepidly that he is, "[Hjighly concerned about his ability to raise the
constitutional issues he has with the discipline in that matter. . . ." Id. at 4:22. But, the
Supreme Court in Middlesex squarely answered the issue of resolving due process and other
constitutional claims, finding abstention proper when the claims could be addressed in state
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Case 2:10-cv-00553-PMP-LRL Document 36 Filed 11/04/10 Page 2 of 5
1 forbidding federal courts to stay or enjoin pending state court proceedings except under
2 special circumstances." Id., at 749 (citing 28 U.S.C. 2283, "A court of the United States
3 may not grant an injunction to stay proceedings in a State court except as expressly
4 authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or
5 effectuate .its judgments."). The Younger Court further held that, "declaratory relief is also
6 improper when a prosecution involving the challenged statute is pending in state court at the
7 time the federal suit is initiated." Id at n. 2.
8 In Middlesex County Ethics Committee v. Garden State Bar Ass'n, 457 U.S. 423, 102
9 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 the
federal case calls Younger abstention into play. So long as the constitutional claims of
12 respondents can be determined in the state proceedings and so long as there is no showing
of bad faith, harassment, or some other extraordinary circumstance that would make
13 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 708
15 (9th Cir. 1995) (affirming dismissal on abstention grounds of suit brought to enjoin
16 disciplinary proceedings and seeking declaratory relief).
17 However, Plaintiff clings to the argument that nothing in Younger prevents the case
18 from proceeding with respect to the due process violations and requests that he be allowed
19 to amend his complaint or stay these proceedings. Opposition, 2:23-27. This is simply
20 wrong. The quoted language above plainly states that as long as the constitutional claims
21 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 the
23 constitutional issues he has with the discipline in that matter .... " Id. at 4:22. But, the
24 Supreme Court in Middlesex squarely answered the issue of resolving due process and other
25 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 any
presumption that the state courts will not safeguard federal constitutional rights." Middlesex
County, 457 U.S. at 431,102 S. Ct. at 2521 (original emphasis).
II.
PLAINTIFF FAILS TO OFFER VALID CLAIMS
UPON WHICH RELIEF CAN BE GRANTED.
In his Opposition, Plaintiff contends that he is entitled to damages for alleged
violations of his rights arising from two (2) incidents. First, Plaintiff alleges that the StateBar
breached the confidentiality of the Nevada Supreme Court Rules with respect to the
discipline 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 a
member ofthe Southern Nevada Disciplinary Board and that this somehow impacts Plaintiffs
right to practice law. Opposition, 5:18 - 6:17.1
First, to the extent Plaintiff might be entitled to confidentiality in the discipline process,
such is a state right, not a federal one to be addressed by this court. In any event, such a
claim can certainly be addressed by the Nevada Supreme Court given that it arises from that
Court's own rule and discipline function. In addition, Supreme Court Rule (SCR) 121
(Confidentiality) provides for an exception as follows:
1. Generally. All proceedings involving allegations of misconduct by an
attorney shall be kept confidential until the filing of a formal complaint. All
participants in a proceeding, including anyone connected with it, shall conduct
themselves so as to maintain the confidentiality of the proceeding until a
formal 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 natureof
a grievance or complaint upon request.
1Apparently, given thesilence in his Opposition, Plaintiff isabandoning his claims in Count II that failing
tosee the proposed Letter of Reprimand orbeing told thestandard of proof violates hisrights.
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Case 2:10-cv-00553-PMP-LRL Document 36 Filed 11/04/10 Page 3 of 5
1 court. Moreover, "Minimal respect for the state processes, of course, precludes any
2 presumption that the state courts will not safeguard federal constitutional rights." Middlesex
3 County, 457 U.S. at 431, 102 S. Ct. at 2521 (original emphasis).
4 II.
PLAINTIFF FAILS TO OFFER VALID CLAIMS
5 UPON WHICH RELIEF CAN BE GRANTED.
6 In his Opposition, Plaintiff contends that he is entitled to damages for alleged
7 violations of his rights arising from two (2) incidents. First, Plaintiff alleges that the State Bar
8 breached the confidentiality of the Nevada Supreme Court Rules with respect to the
9 discipline process. Opposition, 5:4-17; Second Amended Complaint, mI 32 and 33. Second,
10 Plaintiff alleges that the State Bar has prevented him from participating in hearings as a
11 member of the Southern Nevada Disciplinary Board and that this somehow impacts Plaintiffs
12 right to practice law. Opposition. 5:18 - 6:17.1
13 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 a
15 claim can certainly be addressed by the Nevada Supreme Court given that it arises from that
16 Court's own rule and discipline function. In addition, Supreme Court Rule (SCR) 121
17 (Confidentiality) provides for an exception as follows:
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1. Generally. All proceedings involving allegations of misconduct by an
attorney shall be kept confidential until the filing of a formal complaint. All
participants in a proceeding. including anyone connected with it. shall conduct
themselves so as to maintain the confidentiality of the proceeding until a
formal complaint is flied. .
15. Statements by the State Bar of Nevada. Notwithstanding Rule 121(1),
the state bar may disseminate the procedural status and the general nature of
a grievance or complaint upon request.
25 1 Apparently, given the silence in his Opposition, Plaintiff is abandoning his claims in Count II that failing
to 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 the state
proceedings and such allegations fail to prevent dismissal under Younger.
Second, the opportunity to serve on a hearing panel for a disciplinary matter is a far
cry from the ability to practice law and Plaintiff's obdurate insistence in linking the two
demonstrates just how thin his alleged claims really are.
Plaintiff has never been denied the right to practice law. He has never been denied
the opportunity to serve on the Southern Nevada Disciplinary Board. He was peremptorily
challenged from serving on a hearing byundersigned counsel pursuant to SCR105(2)(a).
But what Plaintiff ignores and fails to tell this Court is that he, in fact, recently served
on a hearing panel for one of undersigned counsel's matters two weeks ago, on October 22,
2010. See, Exhibit A-4.
Plaintiff fails to offer any valid facts or law to support the additional allegations in the
Second Amended Complaint. As such, to the extent such claims might survive abstention
under Younger, the court should dismiss them under Fed. R. Civ. P. 12(b)(6).
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 Younger
and Middlesex. Plaintiffs last-ditch efforts to plead allegations to maintain his lawsuit fail to
Case 2:10-cv-00553-PMP-LRL Document 36 Filed 11/04/10 Page 4 of 5
1 If Plaintiff even has a colorable claim under these facts, it can be addressed in the state
2 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 far
4 cry from the ability to practice law and Plaintiff's obdurate insistence in linking the two
5 demonstrates just how thin his alleged claims really are.
S Plaintiff has never been denied the right to practice law. He has never been denied
7 the opportunity to serve on the Southern Nevada Disciplinary Board. He was peremptorily
8 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 the
13 Second Amended Complaint. As such, to the extent such claims might survive abstention
14 under Younger, the court should dismiss them under Fed. R. Civ. P. 12(b)(6).
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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 Younger
and 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). For
the foregoing reasons, this Court should grant defendants' Motion to Dismiss Plaintiff's
Second Amended Complaint.
DATED this^Oavof November 2010.
STATE BAR QFlvJBVADA
General Counsel/Deputy Bar Counsel
600 East Charleston Boulevard
Las Vegas, Nevada 89104
(702) 382-2200
Attorney for Defendants
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Case 2:10-cv-00553-PMP-LRL Document 36 Filed 11/04/10 Page 5 of 5
1 establish valid legal theories of facts to survive dismissal under Fed. R. Civ. P. 12(b)(6). For
2 the foregoing reasons, this Court should grant defendants' Motion to Dismiss Plaintiff's
3 Second Amended Complaint.
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DATED t h i ~ Y of November 2010.
D vi . Clark
General Counsel/Deputy Bar Counsel
600 East Charleston Boulevard
Las Vegas, Nevada 89104
(702) 382-2200
Attorney for Defendants
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