People v. Ziankovich

          ORDER OF REMAND

          RAYMOND P. MOORE, UNITED STATES DISTRICT JUDGE

         Defendant 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^[1] 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.

         I. BACKGROUND

         Defendant 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.

         II. ANALYSIS

         Under 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) (citation omitted).

         As 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.

         A. “Civil Action”

         Defendant 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.

         The 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 to remand.

         Nonetheless, 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.

         B. Federal Question Jurisdiction

         “The 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).

         Defendant 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 ...