United States District Court, D. Colorado
ORDER OF REMAND
RAYMOND P. MOORE, UNITED STATES DISTRICT
removed this proceeding which was pending before the
Presiding Disciplinary Judge (the “PDJ”), Supreme
Court of Colorado, alleging subject matter jurisdiction based
on federal question and diversity jurisdiction. Upon review
of the matter, the Court issued an Order to Show Cause why
this case should not be remanded based on the lack of subject
matter jurisdiction or Younger abstention. (ECF
No. 12.) Plaintiff and Defendant each filed a response (ECF
Nos. 16-17). Upon consideration of the responses, the court
record, and the applicable law, and being otherwise fully
advised, the Court finds and orders as follows.
is an attorney licensed to practice law in New York but
practices federal immigration law in Colorado. Defendant is
not licensed to practice here. Plaintiff filed this
disciplinary proceeding alleging Defendant violated the
Colorado Rules of Professional Conduct by, e.g., failing to
act with reasonable diligence and promptness in representing
his clients and failing to communicate with his clients.
Defendant removed the proceeding to this Court, alleging this
Court has original jurisdiction over this proceeding. The
Court, sua sponte, questioned whether it had subject
matter jurisdiction and issued its Order to Show Cause (the
“OSC”). The parties' responses followed.
28 U.S.C. § 1441(a) “any civil action brought in a
State court of which the district courts of the United States
have original jurisdiction, may be removed by the
defendant…to the district court of the United States
for the district…where such action is pending.”
“Removal statutes are to be strictly
construed…and all doubts are to be resolved against
removal.” Fajen v. Foundation Reserve Ins.
Co., 683 F.2d 331, 333 (10th Cir. 1982) (citation
omitted). The party invoking federal jurisdiction has the
burden of showing that removal is proper. See Lindstrom
v. United States, 510 F.3d 1191, 1193 (10th Cir. 2007)
stated, Defendant contends this Court has original
jurisdiction based on federal question and diversity of
citizenship, 28 U.S.C. §§ 1331-1332. The OSC and
the parties' responses raise the following issues
concerning whether this Court has subject matter jurisdiction
over this action: (1) whether the Colorado Supreme Court has
exclusive jurisdiction; (2) whether the disciplinary
proceeding is a “civil action”; (3) whether the
state proceeding involves a federal question because it
regulates interstate commerce; (4) whether the state claims
are completely preempted by the federal rules which govern
practice before the immigration authorities; (5) whether
there is diversity of citizenship; (6) whether the amount in
controversy exceeds $75, 000; and (7) whether
Younger abstention applies. The Court considers
these issues below.
contends this is a “quasi-criminal civil action”
while Plaintiff contends the courts have found such actions
are “quasi-criminal” or “sui generis”
but not civil. The Court agrees with Plaintiff.
Colorado Supreme Court has recognized that disciplinary
actions are “quasi-criminal” in nature and
“sui generis.” See People v.
Kanwal, 321 P.3d 494, 496 (Colo. 2014). This is because
“[t]he simple fact that attorney discipline proceedings
are quasi-criminal in nature does not mean the full panoply
of criminal protections apply, or that the Rules of Criminal
Procedure should govern disciplinary proceedings.”
In re Fisher, 202 P.3d 1186, 1199 (Colo. 2009).
Instead, the Colorado Supreme Court “follow[s] a
largely civil model for the conduct of formal
proceedings.” Kanwal, 321 P.3d at 496. Thus,
such proceedings are within the exclusive jurisdiction of the
Colorado Supreme Court. Kanwal, 321 P.3d at 495.
They are not “civil actions” subject to removal
within the contemplation of 28 U.S.C. § 1441. See
Alaska Bar Ass'n v. Dickerson, 240 F.Supp. 732, 734
(D. Alaska 1965) (attorney disciplinary proceeding not
“a civil action within contemplation of federal removal
statute”); Supreme Court of Cal. v. Kinney,
No. 3:15-CV-01552 LB, 2015 WL 3413232, at *5 (N.D. Cal. May
27, 2015) (same). On this basis alone, this action is subject
for completeness, the Court addresses the issues further.
Here, even assuming, arguendo, the disciplinary
proceeding may be considered a “civil action”
under Section 1441, Defendant nonetheless fails to show this
matter is within the original jurisdiction of this Court.
Federal Question Jurisdiction
district courts shall have original jurisdiction of all civil
actions arising under the Constitution, laws, or treaties of
the United States.” 28 U.S.C.A. § 1331.
“Under the longstanding well-pleaded complaint rule,
...a suit arises under federal law only when the
plaintiff's statement of [its] own cause of action shows
that it is based upon federal law.” Vaden v.
Discover Bank, 556 U.S. 49, 60 (2009) (quotation marks
and alteration omitted).
essentially raises two arguments as to why federal question
jurisdiction exists. First, Defendant contends federal
question jurisdiction exists because Plaintiff is regulating
interstate commerce by its disciplinary proceeding. Defendant
cites to no legal ...