US v. Ferrara, Civ. A. No. 92-2869.

• Decision Date: 28 May 1993
• Docket Number: Civ. A. No. 92-2869.
• Citation: 847 F. Supp. 964
• Parties: UNITED STATES of America, Plaintiff, v. Virginia L. FERRARA, Chief Disciplinary Counsel of the Disciplinary Board of the Supreme Court of New Mexico, Defendant.
• Court: U.S. District Court — District of Columbia

847 F. Supp. 964

UNITED STATES of America, Plaintiff, v. Virginia L. FERRARA, Chief Disciplinary Counsel of the Disciplinary Board of the Supreme Court of New Mexico, Defendant.

Civ. A. No. 92-2869.

United States District Court, District of Columbia.

May 28, 1993.

Charles Francis Flynn, Asst. U.S. Atty., Washington, DC, Timothy Patrick Garren, U.S. Dept. of Justice, Civ. Div., Torts Branch, Washington, DC, for plaintiff.

Mark W. Foster, Norman L. Eisen, William W. Taylor, III, Zuckerman, Spaeder, Goldstein, Taylor & Kolker, Washington, DC, for defendant.

MEMORANDUM OPINION

NORMA HOLLOWAY JOHNSON, District Judge.

The United States has brought this action against defendant Virginia L. Ferrara, Chief Disciplinary Counsel of the Disciplinary Board of the Supreme Court of New Mexico, to enjoin an inquiry by the Disciplinary Board into the conduct of Assistant United States Attorney John Doe. Currently pending before the Court is defendant's motion to dismiss the complaint, as well as the parties' cross-motions for summary judgment. Upon consideration of the motions, the supporting memoranda of the parties, the entire record herein, and for the reasons outlined below, the Court will grant defendant's motion to dismiss the complaint.

BACKGROUND

John Doe¹ is an Assistant United States Attorney ("AUSA") employed by the Office of the United States Attorney for the District of Columbia. He is licensed to practice law in the state of New Mexico. In 1988, Doe prosecuted a criminal defendant, Darryl J. Smith, in the Superior Court for the District of Columbia. Smith was represented by counsel from the Public Defender's office. On a number of occasions during the course of the prosecution, from September through November 1988, Doe and D.C. Metropolitan Police detective Donald R. Gossage were contacted by Smith and spoke with him, without the knowledge or consent of Smith's counsel.

When Smith's attorney learned of these communications, she objected and filed a motion to dismiss the indictment against her client. Although the Superior Court denied Smith's motion, it nevertheless referred the matter to the District of Columbia Bar Counsel of the Board on Professional Responsibility ("D.C.Bar Counsel"), for possible disciplinary proceedings against Doe on the grounds that he had violated Rule 7-104(A)(1) of the D.C.Code of Professional Responsibility. Because Doe was not a member of the D.C. bar at the time of his alleged violation, the D.C. Bar Counsel referred the matter to the Disciplinary Board of the Supreme Court of New Mexico ("Disciplinary Board"), where Doe was licensed to practice law.

On August 27, 1990, defendant Ferrara filed a specification of charges before the Disciplinary Board, alleging that Doe violated Rules 16-402, 16-804(A), and 16-804(D) of the New Mexico Rules of Professional Conduct, as well as Rules 7-104(A)(1) and 1-102(A)(2) of the District of Columbia Code of Professional Responsibility. These violations allegedly arose out of Doe's communication with an adverse party known to be represented by counsel without the consent of that counsel. See Stipulation of Charges, Exhibit A to Plaintiff's Motion for Summary Judgment (hereinafter, "Pl. S.J.").

On August 28, 1990, Doe sought to remove the disciplinary action to the United States District Court for the District of New Mexico, under 28 U.S.C. § 1442(a)(1). The district court held that it had no jurisdiction under § 1442(a)(1) because a disciplinary proceeding before a state bar disciplinary board was neither a "civil action" nor a "criminal prosecution," within the meaning of that statute. See Matter of Doe, 801 F.Supp. 478 (D.N.M.1992). The court also stated that no colorable federal defense to the disciplinary action existed, to support removal under § 1442. Accordingly, it remanded the action to the Disciplinary Board for further proceedings.

The United States subsequently filed the instant case in this jurisdiction. The case originally came in on plaintiff's motion for preliminary injunction. After briefing on the motion for preliminary injunction, as well as an oral hearing on the motion, this Court granted plaintiff's motion. By Order dated February 8, 1993, the Court enjoined defendant Ferrara from proceeding with the disciplinary action against Doe before the New Mexico Disciplinary Board, during the pendency of this action. The case has now been fully briefed and is ripe for consideration on its merits.

DISCUSSION

Defendant has moved to dismiss the complaint in this case on four grounds. First, defendant argues that the court lacks personal jurisdiction over her. Second, she claims that, because the United States District Court for the District of New Mexico already considered and rejected Doe's Supremacy Clause arguments, principles of collateral estoppel and res judicata preclude this Court's reconsideration of those arguments. Third, defendant asserts that the Court should abstain, under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), from taking any action on the merits of this case pending conclusion of the disciplinary proceedings against Doe in New Mexico. Finally, defendant maintains that venue is improper in the District of Columbia.

Both plaintiff and defendant have also moved for summary judgment in this case. At issue in the motions for summary judgment is whether the Supremacy Clause would be violated by allowing the disciplinary proceeding in New Mexico to go forward.

1. Personal Jurisdiction

Under the long-arm statute of the District of Columbia, an individual becomes subject to the jurisdiction of a District of Columbia court by "transacting any business in the District of Columbia." D.C.Code § 13-423(a)(1). The "transacting business" provision has been interpreted to be as far-reaching as the due process clause allows. Koteen v. Bermuda Cablevision, Ltd., 913 F.2d 973, 974 (D.C.Cir.1990) (citing Hummel v. Koehler, 458 A.2d 1187, 1190 (D.C.1983)).

In order for a court to exercise personal jurisdiction over a nonresident defendant, due process requires that the nonresident defendant have certain minimum contacts with the forum so 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 specifically, there must be some act by which the defendant purposely avails himself of the privilege of conducting activities in the forum state, thereby invoking the benefits and protection of its laws, before she can be haled into court. Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239-40, 2 L.Ed.2d 1283 (1958); accord Asahi Metal Industry Co. v. Superior Court of California, 480 U.S. 102, 109, 107 S.Ct. 1026, 1030-31, 94 L.Ed.2d 92 (1987); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980).

Defendant claims she has insufficient contacts with the District of Columbia to satisfy the constitutional minimum required by International Shoe for the exercise of personal jurisdiction. She points out that her only place of business is in New Mexico; she is neither licensed to do business in the District of Columbia, nor does she maintain an office here. What defendant has done is to initiate and supervise disciplinary proceedings against AUSA Doe in the state of New Mexico, thereby performing her duties as Chief Disciplinary Counsel of the Board.

Plaintiff correctly points out that due process does not require a defendant actually to enter a forum in order to establish sufficient contacts with that forum to support personal jurisdiction. Where a defendant deliberately takes certain actions with an intended effect in another jurisdiction, that defendant should "reasonably anticipate being haled into court" in that jurisdiction. World-Wide Volkswagen, 444 U.S. at 297, 100 S.Ct. at 567; see also Calder v. Jones, 465 U.S. 783, 789-91, 104 S.Ct. 1482, 1487-88, 79 L.Ed.2d 804 (1984). In Calder, the Supreme Court held that a California state court could exercise jurisdiction over defendants who resided in Florida, where defendants had written and edited an allegedly slanderous magazine article that they knew would have a potentially devastating impact upon the subject of the article, who resided in California. The Supreme Court pointed out, not only that the article was drawn from California sources, but that "the brunt of the harm, in terms both of respondent's emotional distress and the injury to her professional reputation, was suffered in California. In sum, California is the focal point both of the story and of the harm suffered." Id. at 789, 104 S.Ct. at 1487.

Plaintiff argues that the District of Columbia is a similar focal point in this case. The Court does not agree. While it may be true that the disciplinary action against Doe is based upon conduct which occurred in this jurisdiction, the Court cannot find, as plaintiff urges, that "defendant has purposefully directed her conduct at this jurisdiction...." Plaintiff's Opposition to Defendant's Motion to Dismiss (hereinafter "Pl.Opp. to M.D."), at 8. Plaintiff asserts that, by proceeding with the disciplinary action in New Mexico, defendant is "essentially establishing standards for the investigation and prosecution of crimes in this jurisdiction." Id. However, any effect that defendant's enforcement of the rules of ethical conduct for the New Mexico bar has on the District of Columbia is, in this case, incidental, not deliberate. By seeking to discipline Doe, defendant is not "expressly aiming" her actions at the District of Columbia. Calder, 465 U.S. at 789, 104 S.Ct. at 1487. Rather, her intent is to uphold and enforce the ethical standards of the bar of New Mexico. The simple fact that, in doing so, defendant may influence the way a particular prosecution is handled by an AUSA in the District of Columbia does not transform her actions into a...