Ziankovich v. Large

          ORDER AFFIRMING AND ADOPTING THE RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE AND DENYING AS MOOT PLAINTIFF’S FOURTH MOTION FOR PRELIMINARY INJUNCTION

          CHRISTINE M. ARGUELLO, UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the Recommendation by United States Magistrate Judge Nina Y. Wang that Defendants Byron M. Large and Jessica E. Yate’s Motion to Dismiss Under Fed.R.Civ.P. 12(b)(6) (Doc. # 52) be converted into a Motion for Summary Judgment (Doc. # 62) and granted against Plaintiff Youras Ziankovich. (Doc. # 69.) Based on this Court’s extensive examination of the pleadings, supplemental filings, and applicable legal authority, the Court affirms and adopts the Recommendation and dismisses Plaintiff’s case with prejudice.

         I. BACKGROUND AND PROCEDURAL HISTORY

         The Magistrate Judge’s Recommendation (Doc. # 69) and this Court’s Order Affirming and Adopting the October 5, 2017 Recommendation of United States Magistrate Judge (Doc. # 23) provided a thorough recitation of the factual and procedural background of this dispute and is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b). Accordingly, this Order will reiterate only what is necessary to address Plaintiff’s objections.

         The following facts are undisputed. Plaintiff maintained legal offices in New York and Colorado. (Doc. # 12.) He held a law license from New York State and has never been admitted as an attorney in Colorado. (Id.; Doc. # 70 at 4, ¶ 3.) Plaintiff practiced immigration law in Colorado before the U.S. District Court for the District of Colorado, the Executive Office of Immigration Review, and the Department of Homeland Security. (Doc. # 70 at 4, ¶ 2.)

         Defendant Jessica E. Yates^[1] is Colorado’s Attorney Regulation Counsel and was appointed by the Colorado Supreme Court to regulate the practice of law in Colorado. (Doc. ## 18, 56–57.) Defendant Byron M. Large is an attorney for Colorado’s Office of Attorney Regulation Counsel (“OARC”). (Id.) As Attorney Regulation Counsel, Defendants are responsible for maintaining and supervising Colorado’s OARC. (Id.) OARC conducts investigations and prosecutes disciplinary actions against attorneys who have allegedly violated the Colorado Rules of Professional Conduct. Colo. R. Civ. P. 251.3(c)(3)–(c)(4), 251.10. OARC’s regulatory jurisdiction includes attorneys licensed to practice in Colorado, as well as attorneys licensed by other states who practice before federal courts and regulatory agencies in Colorado. Colo. R. Civ. P. 8.5(a). An impartial hearing board (“Hearing Board”), which includes the Colorado Supreme Court’s presiding disciplinary judge (“PDJ”), presides over OARC’s cases. Colo. R. Civ. P. 251.16–18. The Hearing Board’s disciplinary decisions may be appealed to the Colorado Supreme Court. Colo. R. Civ. P. 251.27(a).

         A. STATE DISCIPLINARY ACTION

         This dispute arises out of OARC’s attorney discipline action against Plaintiff, No. 17PDJJ037 (“State Disciplinary Action”).^[2] See (Doc. # 14, Doc. # 64-4 at 1– 13.) On June 1, 2017, Plaintiff filed with the PDJ a motion to dismiss the State Disciplinary Action on the grounds that OARC lacked jurisdiction to investigate and sanction attorneys with law licenses from other states and with practices limited to federal court matters. (Doc. # 14-3; Doc. # 48 at ¶ 12.) After the parties briefed that issue, see (Doc. # 14-4), the PDJ denied Plaintiff’s motion to dismiss on July 13, 2017 (Doc. # 14-5). Therein, the PDJ concluded that the Office of the Presiding Disciplinary Judge of the Colorado Supreme Court had jurisdiction over Plaintiff and could adjudicate the OARC claims brought against him. (Id.) The Colorado Supreme Court declined to hear Plaintiff’s interlocutory appeal. (Doc. # 14-8.) The State Disciplinary Action proceeded against Plaintiff. (Doc. # 14-9.)

         On March 5, 2018, Defendants moved for summary judgment on all eight claims asserted against Plaintiff (Doc. # 52-1 at 1), and the PDJ granted in part that motion for summary judgment, entering judgment in Defendants’ favor on six claims (id. at 13). The PDJ set the remaining two claims for a two-day disciplinary hearing. (Id.)

         On March 28, 2018, Plaintiff filed his Hearing Brief with the OARC before his hearing commenced. (Doc. # 52-5.) In his brief, Plaintiff asserted the following defenses that are pertinent to the instant Recommendation:

1) lack of subject matter jurisdiction;

4) violation of Plaintiff’s right for due process;

14) Discipline action in any form violates [Plaintiff’s] right to procedural due process under the Fourteenth Amendment of the United States Constitution and the Constitution of the State of Colorado, violates the Interstate Commerce Clause of the United States Constitution, violates the [Plaintiff’s] rights under the First Amendment to the United States Constitution and the Constitution of the State of Colorado, violates the [Plaintiff’s] rights under the Fifth Amendment to the United States Constitution and the Constitution of the State of Colorado, was commenced in violation of the 42 U.S.C. § 1983, is beyond of this Court and the State of Colorado authority, and therefore fails to state a cause of action upon which disciplinary action, suspension, or disbarment may be granted[.]

(Id. at 5–6.)

         On April 10 and 11, 2018, Plaintiff and Defendants participated in a disciplinary hearing (the “Hearing”) before the Hearing Board, which consisted of the PDJ, an attorney, and a lay member. (Doc. # 52-2 at 3.) At the beginning of the Hearing, Defendants withdrew one of the two remaining claims, and Plaintiff moved to dismiss the case for lack of jurisdiction while alleging that he did not receive requisite written notice of the hearing. (Id.) The Hearing Board denied Plaintiff’s motion to dismiss after Plaintiff confirmed he had participated in setting the hearing and received the PDJ’s Scheduling Order. (Id.) Throughout the Hearing, the Hearing Board considered stipulated exhibits, Plaintiff’s proffered exhibit, and the testimony provided by Plaintiff, Plaintiff’s former clients, and expert witness Lisa Green. (Id. at 3, 6–8.)

         On May 31, 2018, the Hearing Board issued its Opinion and Decision Imposing Sanctions under Colo. R. Civ. P. 251.19(b) (Doc. # 52-2 at 1) to which Plaintiff filed a Colo. R. Civ. P. 59 Post-Trial Motion (Doc. # 52-6). In Plaintiff’s Post-Trial Motion, he raised previously asserted defenses, including his steadfast objection to the OARC’s jurisdiction over him. (Id.) The Hearing Board denied Plaintiff’s Post-Trial Motion as to his substantive challenges but granted Plaintiff’s request to strike two sentences. (Doc. # 52-7.) On June 20, 2018, the Hearing Board issued an Amended Opinion and Decision (“Amended Opinion”). (Doc. # 52-2 at 1 n.1); People v. Ziankovich, 433 P.3d 640 (Colo. O.P.D.J. 2018).

         The underlying substantive analysis of the Hearing Board’s initial opinion was unchanged in its Amended Opinion. (Doc. # 52-2 at 1.) The Hearing Board determined that Plaintiff was guilty of violating several Colorado Rules of Professional Conduct and suspended him from practicing law in Colorado for one year and one day, with three months to be served, and the remainder stayed upon the successful completion of a two-year probation period, subject to certain conditions. (Id. at 21–23.) The Hearing Board rejected Plaintiff’s defenses, including his challenge to jurisdiction and argument that the disciplinary action violated the Commerce Clause and his due process, constitutional, and statutory rights. (Id. at 12–15.)

         On July 9, 2018, Plaintiff appealed the Hearing Board’s decision to the Colorado Supreme Court (Doc. # 52-4 at 16), and, on October 28, 2018, Plaintiff filed his Opening Brief (id. at 1). In his Opening Brief, Plaintiff raised his previously asserted objection to the OARC’s jurisdiction to discipline him and that such disciplinary action constituted a violation of due process of law. (Id. at 9.) On February 1, 2019, the Colorado Supreme Court issued an Order and Mandate affirming the Hearing Board’s Amended Opinion. (Doc. # 52-3.)^[3]

         B. FEDERAL ACTION

         After Defendants initiated the State Disciplinary Action against Plaintiff, Plaintiff commenced this federal action pro se on August 24, 2017 (“Federal Action”). (Doc. # 1.) Plaintiff sought declaratory judgment that Defendants did not have jurisdiction to initiate the State Disciplinary Action against him because he has never been licensed to practice law by Colorado and does not practice before Colorado state courts or agencies, rather, he practices federal immigration law in the federal courts in Colorado. (Id.); see also (Doc. # 14-1.)

         On August 31, 2017, Plaintiff filed his first Motion for TRO. (Doc. # 5.) The Court referred the motion to Magistrate Judge Wang on September 6, 2017. (Doc. # 9.) Magistrate Judge Wang issued an Order to Show Cause, directing Plaintiff to explain why his case should not be dismissed for lack of subject matter jurisdiction. (Doc. # 11.) Plaintiff then filed his first Amended Complaint on September 10, 2017, which Magistrate Judge Wang understood to be his Response to the Order to Show Cause. See (Doc. # 12.) The Amended Complaint suggests that Plaintiff invokes the Court’s federal question jurisdiction under 28 U.S.C. § 1331, and that Plaintiff asserts 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. (Id.) Plaintiff seeks declaratory relief and attorney fees. (Id.) Magistrate Judge Wang recommended that Plaintiff’s first Motion for TRO be denied as moot in light of Plaintiff’s Amended Complaint and discharged the Order to Show Cause on September 12, 2017. (Doc. # 13.) This Court affirmed and adopted that recommendation on October 5, 2017. (Doc. # 20.)

         Plaintiff filed a second Motion for TRO, which is identical to his first motion, on September 14, 2017. (Doc. # 14.) The Court referred the motion to Magistrate Judge Wang. (Doc. # 15.) While that second Motion for TRO was pending, Defendants moved to dismiss the case pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) on September 25, 2017. (Doc. # 18.) Defendants argued that the Court should dismiss the case under Rule 12(b)(1) for lack of subject matter jurisdiction because the requirements of the Younger abstention doctrine were satisfied. (Id.) Plaintiff did not timely respond to Defendant’s motion to dismiss. Defendants responded to Plaintiff’s second Motion for TRO on October 5, 2017. (Doc. # 19.) On October 5, 2017, Magistrate Judge Wang recommended that Plaintiff’s second Motion for TRO (Doc. # 14) be denied without prejudice and that Plaintiff’s Amended Complaint (Doc. # 12) be dismissed without prejudice pursuant to abstention doctrine set forth in Younger v. Harris, 401 U.S. 37 (1971). (Doc. # 21.) On October 21, 2017, the Court adopted and affirmed that recommendation and dismissed Plaintiff’s action without prejudice. (Doc. # 23.)

         On January 8, 2018, Plaintiff appealed the Court’s dismissal to the United States Court of Appeals for the Tenth Circuit. (Doc. # 30.) On December 26, 2018, the Tenth Circuit reversed and remanded the Court’s dismissal of Plaintiff’s Amended Complaint given that the State Disciplinary Action had concluded. (Doc. # 36.) The Tenth Circuit issued its mandate on January 23, 2019. (Doc. # 49.) On that same day, Plaintiff filed his fourth^[4] Motion for TRO (Doc. # 48), which the Magistrate Judge recommended be denied. (Doc. # 59.)

         On February 6, 2019, Defendants filed their Motion to Dismiss Under Fed.R.Civ.P. 12(b)(6). (Doc. # 52.) In their Motion to Dismiss, Defendants asserted three arguments. First, Defendants argued that, as a matter of law, the OARC and PDJ had the authority to discipline Plaintiff for his provision of legal services to Colorado residents. (Id. at 5–9.) Next, Defendants averred that Plaintiff failed to state plausible claims for all five^[5] counts. (Id. at 9–13.) Finally, Defendants contended that doctrines of issue and claim preclusion barred Plaintiff’s Federal Action. (Id. at 13–15.) On February 9, 2019, Plaintiff responded to Defendants’ Motion to Dismiss. (Doc. # 54.) Defendants replied to the Response on February 22, 2019. (Doc. # 58.)

         The Court referred Defendants’ Motion to Dismiss to Magistrate Judge Wang on February 7, 2019. (Doc. # 53.) Because the parties presented matters outside the pleadings (Doc. # 69 at 1), on April 24, 2019, pursuant to Rule 12(d), Magistrate Judge Wang issued a minute order providing notice that she intended to convert Defendants’ Motion to Dismiss into a Motion for Summary Judgment under Rule 56 (Doc. # 62). As a result, Plaintiff supplemented the record in opposition to the Motion for Summary Judgment on May 7, 2019 (Doc. # 63) and May 8, 2019 (Doc. # 65), and Defendants supplemented the record in support of their Motion on May 8, 2019 (Doc. # 64).^[6]

         C. THE MAGISTRATE JUDGE’S RECOMMENDATION

         Magistrate Judge Wang issued her Recommendation that the Court should dismiss Plaintiff’s Complaint with prejudice on May 31, 2019. (Doc. # 69.) Based on the undisputed material facts, the Magistrate Judge determined that the PDJ and OARC had jurisdiction and the authority to discipline Plaintiff for his provision of legal services to Colorado residents. (Id. at 11–16.) Next, Magistrate Judge Wang concluded that Plaintiff failed to proffer competent evidence that would establish any of his claims under applicable law. (Id. at 16–32.) Finally, as discussed in greater detail below, the Magistrate Judge decided that issue preclusion applied and barred Plaintiff’s Federal Action. (Id. at 33–36.)

         On June 3, 2019, Plaintiff filed his Objection to the Recommendation. (Doc. # 70.) Defendants responded to Plaintiff’s Objection on July 1, 2019. (Doc. # 75.) For the following reasons, the Court adopts the Recommendation as to the Magistrate Judge’s conclusion regarding issue preclusion and holds that the Hearing Board’s Amended Opinion, as affirmed by the Colorado Supreme Court, bars Plaintiff’s Federal Action.

         II. LEGAL STANDARDS

         A. REVIEW OF A RECOMMENDATION

         When a magistrate judge issues a recommendation on a dispositive matter, Rule 72(b)(3) requires that the district judge “determine de novo any part of the magistrate judge’s [recommended] disposition that has been properly objected to.” An objection is properly made if it is both timely and specific. United States v. One Parcel of Real Property Known As 2121 East 30th Street, 73 F.3d 1057, 1059 (10th Cir. 1996). In conducting its review, “[t]he district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Fed.R.Civ.P. 72(b)(3).

         However, where a party has not properly objected, such failure “will bar de novo review by the district judge of the magistrate judge’s proposed findings and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings and recommendations of the magistrate judge.” Raccoon Recovery, LLC v. Navoi Mining & Metallurgical Kombinat, 244 F.Supp.2d 1130, 1144 (D. Colo. 2002). An objection that is “sufficiently specific to focus the district court’s attention on the factual and legal issues that are truly in dispute will advance the policies behind the Magistrate’s Act that led [the Tenth Circuit] to adopt a waiver rule in the first instance.” One Parcel, 73 F.3d at 1060. “In the absence of a timely and specific objection, ‘the district court may review a magistrate . . . [judge’s] report under any standard it deems appropriate.’” Concilio v. Cigna Health and Life Ins. Co., No. 16-cv-1863-WJM-MJW, 2018 WL 3545306, *6 n.1 (D. Colo. July 24, 2018) (quoting Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (citing Thomas v. Arn, 474 U.S. 140, 150 (1985)).

         B. PRO SE PLAINTIFF

         Plaintiff is proceeding pro se. The Court, therefore, reviews his pleading “liberally and hold[s] [it] to a less stringent standard than those drafted by attorneys.” Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted). However, a pro se litigant’s “conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court may not assume that a plaintiff can prove facts that have not been alleged, or that a defendant has violated laws in ways that a plaintiff has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (a court may not “construct arguments or theories for the plaintiff in the absence of any discussion of those issues”). Nor does pro se status entitle a litigant to an application of different rules. See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).

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