Burstein v. State Bar of California, Civ. A. No. 80-2398.

• Decision Date: 18 December 1980
• Docket Number: Civ. A. No. 80-2398.
• Citation: 503 F. Supp. 227
• Court: U.S. District Court — Eastern District of Louisiana
• Parties: Carole Hyman BURSTEIN, v. The STATE BAR OF CALIFORNIA.

503 F. Supp. 227

Carole Hyman BURSTEIN, v. The STATE BAR OF CALIFORNIA.

Civ. A. No. 80-2398.

United States District Court, E. D. Louisiana.

December 18, 1980.

Carole Hyman Burstein, in pro. per.

Robert M. Sweet, Los Angeles, Cal. and Darlene Marie Azevedo, San Francisco, Cal., for the State Bar of California.

CHARLES SCHWARTZ, Jr., District Judge.

This matter arises on the motion of the defendant, the State Bar of California (hereafter the State Bar), to dismiss the complaint of plaintiff Carole Hyman Burstein pursuant to Rule 12(b) of the Federal Rules of Civil Procedure on grounds of failure to establish personal jurisdiction, failure to establish subject matter jurisdiction, the barring of the complaint by the Eleventh Amendment, the clothing of the defendant with judicial immunity in performing its bar examination function, and failure of the complaint to state a ground upon which relief can be granted. For reasons which will be set forth, we reach only the question of personal jurisdiction today and venture no opinion on the merits of any other ground raised by the defendant for its motion to dismiss, or on any issue raised in the plaintiff's complaint.

The plaintiff is a 1955 summa cum laude graduate of the University of California at Los Angeles, from which she also holds a Master's Degree in English. She is a 1976 graduate of the Loyola Law School of New Orleans and a member of the Louisiana Bar. She sat for the California Bar examination administered on July 24, 25, and 26, 1979, in San Francisco. The State Bar's Committee of Bar Examiners informed her in November of that year that she had failed the examination.

Ms. Burstein now brings this suit against the State Bar alleging that the Educational Testing Service, which wrote and graded the Multistate portion of the California examination, "had through computer error negligently given her failing grades" on the multiple selection portion of the test and that the California examiners, by virtue of their knowledge of her failing grade on the Multistate portion, failed to accord the essay portion of her examination serious consideration. Burstein alleges that the State Bar in so doing acted under color of law to violate her rights to due process by denying her a fair and impartial reading of her examination. She further charges that the State Bar denied her equal protection under the law by stigmatizing and further penalizing the group of persons with failing Multistate scores by attaching a negative presumption as to the quality, or relative lack thereof, of the essay portions of their examinations.

The plaintiff seeks to invoke the provisions of Louisiana Revised Statutes 13:3201 et seq., the Louisiana Longarm Statute, to gain jurisdiction over the "person" of the State Bar. That statute provides that

A Court may exercise personal jurisdiction over a nonresident, who acts directly or be an agent, as to a cause of action arising from the nonresident's

(a) transacting any business in this state;

(b) contracting to supply services or things in this state;

(c) causing injury or damage by an offense or quasi offense committed through an act or omission in this state;

(d) causing injury or damage in this state by an offense or quasi offense committed through an act or omission outside of this state if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this state; or

(e) having an interest in, using, or possessing a real right or immovable property in this state.

The standard set forth by the Supreme Court in International Shoe requires, of course, that a court exercise personal jurisdiction over nonresidents only when such defendants have sufficient "minimum contacts" with the forum state that "the maintenance of the suit does not offend `traditional notions of fair play and substantial justice.'" International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). More recently, the Court has noted that "while the interests of the forum State and of the plaintiff in proceeding with the cause in the plaintiff's forum of choice are of course to be considered, see McGee v. International Life Insurance Co., 355 U.S. 220, 223, 78 S.Ct. 199, 201, 2 L.Ed.2d 223 (1957), an essential criterion in all cases is whether the `quality and nature' of the defendant's activity is such that it is `reasonable' and `fair' to require him to conduct his defense in that state. International Shoe Co. v. Washington, su...