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Ziankovich v. Large

United States District Court, D. Colorado

March 8, 2019

YOURAS ZIANKOVICH, Plaintiff,
v.
BRYON M. LARGE, and JESSICA E. YATES, Defendants.

          RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          NINA Y. WANG UNITED STATES MAGISTRATE JUDGE.

         This matter comes before the court for recommendation on pro se[1] Plaintiff Youras Ziankovich's (“Plaintiff” or “Mr. Ziankovich”) “Memorandum of Law in Support of the Fourth Application for Temporary Restraining Order and Order to Show Cause Why a Preliminary Injunction Should Not Be Issued” (the “Motion” or “Fourth Motion for TRO”), filed January 23, 2019. See [#48]. This court considers the Motion pursuant to 28 U.S.C. § 636(b) and the Memorandum dated January 23, 2019 [#51]. This court concludes that oral argument will not materially assist in the resolution of this matter. Accordingly, upon careful review of the Motion and associated briefing, the record, and applicable law, this court respectfully RECOMMENDS that the Fourth Motion for TRO be DENIED.

         BACKGROUND

         Plaintiff commenced this action on August 24, 2017. [#1]. The Complaint alleged that Plaintiff's primary residence and one of his business offices was located in Colorado, and stated that this “is an action for declaratory relief commenced pursuant to 28 U.S.C. § 2201 and in accordance with the Rule 57 of the Federal Rules of Civil Procedure.” [#1 at 2]. Plaintiff seeks declaratory relief that Defendants Bryon M. Large and Jessica Yates[2] (collectively, “Defendants”), both of whom are legal counsel within the Colorado Office of Attorney Regulation Counsel, had no authority to initiate an attorney disciplinary action against Plaintiff, because Plaintiff is not and has never been licensed in the state of Colorado; does not practice before Colorado state courts and/or agencies; and only practices federal immigration law in the State pursuant to 8 C.F.R. § 292.1(a)(1). [Id.]; see also [#14-1]. Plaintiff argued that Defendants lack jurisdiction to initiate disciplinary proceedings under the Colorado Supreme Court's attorney regulations, as he only practices in federal court and is subject only to New York's attorney regulations as a licensed New York attorney. See [#14-1 at 3-6]. Plaintiff contended that then-pending disciplinary action, No. 17PDJ037, posed an imminent threat of danger and irreparable harm, because he may be required to disclose sensitive client information that may also subject him to discipline in New York, and that any disciplinary sanctions imposed may negatively affect his reputation. [Id. at 6-7].

         On August 31, 2017, Plaintiff filed his First Motion for TRO seeking to enjoin the disciplinary action pending in state court. [#5]. The undersigned then had the case redrawn to a District Judge pursuant to Local Rule 40.1(c)(2)(a). See [#6]. The presiding judge, the Honorable Christine M. Arguello, then referred the First Motion for TRO to the undersigned Magistrate Judge on September 6, 2017. [#9]. Before addressing the merits of the first Motion for TRO, however, this court issued an Order to Show Cause directing Plaintiff to clarify the basis for federal subject matter jurisdiction over this action. See [#11 at 3].

         Plaintiff filed his Amended Complaint on September 10, 2017, which this court also construed as his Response to the Order to Show Cause. See [#12]. The Amended Complaint indicates that Plaintiff invokes this court's federal question jurisdiction under 28 U.S.C. § 1331, and asserts several new claims against Defendants pursuant to 42 U.S.C. § 1983 for violations of his First, Fifth, and Fourteenth Amendment rights, as well as a claim for violations of the Commerce Clause, art. I, § 8, cl. 3 of the United States Constitution. See [id. at 5-6]. Plaintiff requests declaratory relief. [Id. at 5]. Given Plaintiff's Amended Complaint, this court issued a Recommendation to deny as moot Plaintiff's First Motion for TRO, see [#13], which Judge Arguello adopted on October 5, 2017, see [#20]. Plaintiff filed his Second Motion for TRO on September 14, 2017. [#14].

         Defendants entered their appearance on September 7, 2017. See [#10]. Pursuant to the executed summonses, Defendants were to file their answer or responsive pleading to Plaintiff's Complaint [#1] on or before September 15, 2017. See [#4]. On September 25, 2017, Defendants filed a Motion to Dismiss [#18], and on October 5, 2017, Defendants filed a Response to the Second Motion for TRO [#19]. This court recommended denying without prejudice Mr. Ziankovich's Second Motion for TRO and dismissing this action without prejudice pursuant to Younger v. Harris, 401 U.S. 37 (1971), given the ongoing state disciplinary proceedings. See [#21]. Judge Arguello adopted the Recommendation in full, and dismissed Plaintiff's Amended Complaint without prejudice on October 31, 2017. See [#23; #24].

         Following Judge Arguello's denial of his post-judgment motion, see [#29], Plaintiff appealed this matter to the United States Court of Appeals for the Tenth Circuit (“Tenth Circuit”). See [#30]. On December 26, 2018, the Tenth Circuit reversed and remanded the dismissal of Mr. Ziankovich's Amended Complaint because, in the interim, the state disciplinary proceedings had terminated, and thus Younger abstention was no longer appropriate. See [#36]. That same day, Plaintiff filed his Third Motion for TRO [#38], which Judge Arguello struck given that the Tenth Circuit had yet to issue its mandate, see [#47]. Mr. Ziankovich also filed Motions for Entry of Default as to Defendants, but default did not enter because the court did not have jurisdiction to act on the motions before the Tenth Circuit's mandate issued and because Defendants had filed a Motion seeking an abeyance of its response obligations to the Third Motion for TRO. See [#46]. The Tenth Circuit issued its mandate on January 23, 2019. See [#49].

         Plaintiff filed the instant Motion on January 23, 2019. See [#48]. Plaintiff asserts that on June 20, 2018, following a hearing, the presiding disciplinary judge issued an Amended Opinion and Order finding that Mr. Ziankovich had violated several Colorado Rules of Professional Conduct warranting sanctions. See [id. at ¶¶ 14, 19-20; #48-5]. Plaintiff appealed that determination to the Colorado Supreme Court on or about July 9, 2018, see [#48 at ¶ 21], and the presiding disciplinary judge granted Plaintiff's motion to stay the imposition of sanctions pending his appeal, see [id. at ¶¶ 22-23]. According to Plaintiff, Defendants twice moved to lift the stay, and the presiding disciplinary judge lifted the stay on October 8, 2018, and later issued an Order Notice of Suspension on October 31, 2018. See [id. at ¶¶ 24, 26-27]. Plaintiff alleges he moved from Colorado and shut down his Colorado law practice. See [id. at ¶¶ 9, 25].

         Defendants have since responded in opposition to the Fourth Motion for TRO. See [#55]. They argue that the court should deny the Motion for several reasons: (1) Plaintiff's request for injunctive relief is now moot because Plaintiff abandoned this request, presumably when the Colorado Supreme Court upheld the presiding disciplinary judge's sanctions on February 1, 2019; (2) Plaintiff failed to follow the procedural requirements of Rule 65 of the Federal Rules of Civil Procedure; and (3) Plaintiff failed to satisfy his heavy burden demonstrating an entitlement to injunctive relief. See generally [id.]. Although Plaintiff has not filed a Reply, the time for doing so has expired, and this court concludes that it is appropriate to consider the Motion presently. See D.C.COLO.LCivR 7.1(d). Given the issues before the court, this court finds that an evidentiary hearing is not necessary, and I therefore consider the Parties' arguments below.

         LEGAL STANDARD

         Federal Rule of Civil Procedure 65 authorizes the court to enter preliminary injunctions and issue temporary restraining orders. Fed.R.Civ.P. 65(a), (b). “When the opposing party actually receives notice of the application for a restraining order, the procedure that is followed does not differ functionally from that on an application for a preliminary injunction and the proceeding is not subject to any special requirements.” 11A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure: Civil § 2951 (3d ed.) Because Defendants have notice of the Fourth Motion for TRO, and, indeed, filed a Response, the court treats the Motion as a motion for preliminary injunction.

         Courts consider a preliminary injunction an extraordinary remedy. See, e.g., Winter v. Nat'l Res. Defense Council, Inc., 555 U.S. 7, 24 (2008) (citation omitted). Thus, the right to such relief must be “clear and unequivocal.” Petrella v. Brownback, 787 F.3d 1242, 1256 (10th Cir. 2015) (quoting Beltronics USA, Inc. v. Midwest Inventory Distrib., LLC, 562 F.3d 1067, 1070 (10th Cir. 2009)). A party seeking preliminary injunctive relief must satisfy four factors: (1) a likelihood of success on the merits; (2) a likelihood that the movant will suffer irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in the movant's favor; and (4) that the injunction is in the public interest. Id. at 1257.

         The primary goal of a preliminary injunction is to preserve the pre-trial status quo. “Status quo” is defined to be the last uncontested status between the parties that preceded the controversy until the outcome of the final hearing. See Schrier v. University of Colorado, 427 F.3d 1253, 1260 (10th Cir. 2005). Therefore, courts view the following types of injunctions with caution: (1) preliminary injunctions that alter the status quo; (2) preliminary injunctions that require the nonmoving party to take affirmative action (“mandatory preliminary injunctions”); and (3) preliminary injunctions that give the movant all the relief it would be entitled to if it prevailed in a full trial.[3]RoDa Drilling Co. v. Siegal, 552 F.3d 1203, 1208 (10th Cir. 2009) (citing O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft,389 F.3d 973, 975 (10th Cir. 2004) (per curiam)). Movants who seek a disfavored injunction must demonstrate a substantial likelihood of success on the merits, as well as a heightened showing of the other three elements. Id. (citing O Centro, 389 F.3d at 980). See alsoFundamentalist Church of Jesus Christ of Latter-Day Saints v. Horne, 698 F.3d 1295, 1301 (10th Cir. 2012) (the movant must show that the factors “weigh heavily and compellingly” in his or her favor). The court may grant a disfavored injunction only if the moving party demonstrates that the “exigencies of the case require extraordinary interim relief, ” and satisfies the heightened burden. RoDa Drilling, 552 F.3d at 1209 (citing O Centro, 389 F.3d at 978). “The ...


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