Thaw v. Lynch

• Decision Date: 15 March 2016
• Docket Number: 2:15-cv-01703 JWS
• Parties: Russell Thaw, et al., Plaintiffs, v. Loretta Lynch, et al., Defendants.
• Court: U.S. District Court — District of Arizona

Russell Thaw, et al., Plaintiffs, v. Loretta Lynch, et al., Defendants.

2:15-cv-01703 JWS

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

March 15, 2016

ORDER AND OPINION

[Re: Motions at Dockets 9 and 16]

I. MOTIONS PRESENTED

At docket 9 defendants United States Attorney General Loretta Lynch and thirteen judges of the United States District Court for the District of Arizona (collectively, "Defendants") move pursuant to Rules 12(b)(1) and (2) for an order dismissing the complaint of plaintiffs Russell Thaw, Sheryl Ann Phipps, John M. Daley, and Patent Lawyer Doe (collectively, "Plaintiffs"). In a combined filing at docket 16, Plaintiffs oppose Defendants' motion and move for summary judgment under Rule 56. Plaintiffs' summary judgment motion is supported by a separate "statement of material undisputed facts" at docket 17. Defendants reply in support of their motion and oppose Plaintiffs' motion in a combined filing at docket 24. Defendants' evidentiary objections and response to Plaintiffs' statement of facts is at docket 25. At docket 31, Plaintiffs reply in support of their motion.

Oral argument was requested, but would not assist the court.

II. BACKGROUND

Local Civil Rule 83.1 ("LRCiv 83.1") limits eligibility for full admission to the bar of the Arizona District Court to attorneys who are members of the Arizona Bar.¹ Plaintiffs, four attorneys who are not Arizona Bar members, allege that this limitation violates federal law. Specifically, they allege that LRCiv 83.1 violates (1) the Rules Enabling Act; (2) the Supremacy Clause; (3) the First Amendment; (4) Due Process; and (5) Equal Protection.

III. STANDARDS OF REVIEW

A. Rule 12(b)(6)

Defendants' motion cites Rules 12(b)(1) and (b)(6). Under Rule 12(b)(1) a party may seek dismissal of an action for lack of subject-matter jurisdiction. Because Defendants do not assert any challenges to this court's subject-matter jurisdiction, their reliance on Rule 12(b)(1) is misplaced. Defendants' challenges to the sufficiency of Plaintiffs' complaint fall squarely under Rule 12(b)(6).

Rule 12(b)(6) tests the legal sufficiency of a plaintiff's claims. In reviewing such a motion, "[a]ll allegations of material fact in the complaint are taken as true and construed in the light most favorable to the nonmoving party."² To be assumed true, the allegations "may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively."³ Dismissal for failure to state a claim can be based on either "the lack of a cognizable legal theory or the absence of sufficient factsalleged under a cognizable legal theory."⁴ "Conclusory allegations of law . . . are insufficient to defeat a motion to dismiss."⁵

To avoid dismissal, a plaintiff must plead facts sufficient to "'state a claim to relief that is plausible on its face.'"⁶ "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."⁷ "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully."⁸ "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement to relief.'"⁹ "In sum, for a complaint to survive a motion to dismiss, the non-conclusory 'factual content,' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief."¹⁰

B. Rule 56

Plaintiffs' motion seeks summary judgment under Rule 56. Summary judgment is appropriate where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."¹¹ The materiality requirement ensures that "only disputes over facts that might affect the outcome of the suit underthe governing law will properly preclude the entry of summary judgment."¹² Ultimately, "summary judgment will not lie if the . . . evidence is such that a reasonable jury could return a verdict for the nonmoving party."¹³ However, summary judgment is mandated "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial."¹⁴

The moving party has the burden of showing that there is no genuine dispute as to any material fact.¹⁵ Where the nonmoving party will bear the burden of proof at trial on a dispositive issue, the moving party need not present evidence to show that summary judgment is warranted; it need only point out the lack of any genuine dispute as to material fact.¹⁶ Once the moving party has met this burden, the nonmoving party must set forth evidence of specific facts showing the existence of a genuine issue for trial.¹⁷ All evidence presented by the non-movant must be believed for purposes of summary judgment, and all justifiable inferences must be drawn in favor of the non-movant.¹⁸ However, the non-moving party may not rest upon mere allegations or denials, but must show that there is sufficient evidence supporting the claimed factual dispute to require a fact-finder to resolve the parties' differing versions of the truth at trial.¹⁹

IV. DISCUSSION

A. Plaintiffs' Due Process and Equal Protection Claims

Defendants argue that Plaintiffs' complaint fails to state Due Process and Equal Protection claims.²⁰ By not responding to this argument, Plaintiffs abandon these two claims.²¹ Counts four and five of the complaint will be dismissed.

B. Plaintiffs' Rules Enabling Act and Supremacy Clause Claims

Counts one and two of Plaintiffs' complaint allege that LRCiv 83.1 is inconsistent with federal law and therefore violates the Rules Enabling Act, 28 U.S.C. §§ 2071-72, and the Supremacy Clause. Because these two counts overlap, they will be discussed together.

"Federal courts have inherent and broad regulatory authority to make rules respecting the admission, practice, and discipline of attorneys in the federal courts."²² Two sources of these rules from the Rules Enabling Act are relevant here. The first is § 2072, which empowers the Supreme Court to promulgate "general rules of practice and procedure," including the Federal Rules of Civil Procedure, "for cases in the United States district courts (including proceedings before magistrate judges thereof) and courts of appeals."²³ This authority is limited to procedural rules: no rule may "abridge, enlarge or modify any substantive right."²⁴

The second source is § 2071, which empowers courts to promulgate local rules "for the conduct of their business."²⁵ This authority is limited to rules that are "consistent with Acts of Congress and rules of practice and procedure prescribed under" § 2072.²⁶

Defendants argue that LRCiv 83.1 does not violate the Rules Enabling Act because § 2072's prohibition of substantive rules does not apply to local rules enacted under § 2071 and, even if it did, LRCiv 83.1 does not violate that prohibition.²⁷ In response, Plaintiffs argue that neither § 2072 rules nor § 2071 rules may be substantive in nature, and LRCiv 83.1 violates this prohibition because it abridges, enlarges, and modifies a host of substantive rights.

1. § 2072's prohibition of substantive rules also applies to § 2071 rules

Defendants' argument that § 2072's procedural-rule limitation does not apply to rules prescribed under § 2071 relies primarily on Russell v. Hug, a case involving a challenge to the Northern District of California's General Order 2 ("GO2"). GO2 set forth the Criminal Justice Act Plan for that court²⁸ and, among other requirements, it required members of the Indigent Defense Panel to be California Bar members.²⁹ The plaintiff, who was not a California Bar member, argued that GO2 violated both § 2071 and § 2072. This case is of no avail to Defendants because the Ninth Circuit held that GO2 was not a "rule" at all,³⁰ and therefore neither § 2071 nor § 2072 applied.Defendants also rely on Giannini v. Real,³¹ but that case also is inapposite because the Ninth Circuit did not address whether local rules must conform to § 2072's standards.

Plaintiffs respond by noting that § 2071 was amended by the Judicial Improvements and Access to Justice Act of 1988 ("JIAJA"). Before the JIAJA, § 2071 stated that local rules must "be consistent with Acts of Congress and rules of practice and procedure prescribed by the Supreme Court."³² The JIAJA struck out § 2071's reference to the Supreme Court and substituted a reference to § 2072.³³ According to one commentary on this revision, this change "requires the rules promulgated on the authority of § 2071 to conform to the requirements of § 2072 instead of merely to rules promulgated by the Supreme Court."³⁴

Plaintiffs' argument is persuasive. If Defendants were correct that local rules need only comply with the Supreme Court's § 2072 rules themselves, and not also the statutory limitations to those rules, then the 1988 amendment to the Rules Enabling Act would serve no purpose. The court holds that § 2071 local rules, like § 2072 rules of general applicability, must be procedural in nature.³⁵

2. LRCiv 83.1 does not abridge, enlarge, or modify any substantive right.

The Supreme Court has held that the Rules Enabling Act's limitation that rules "shall not abridge, enlarge or modify any substantive right"³⁶ means that the rule "must 'really regulat[e] procedure,—the judicial process for enforcing rights and duties recognized by substantive law and for justly administering remedy and redress for disregard or infraction of them."³⁷ The test for determining whether a rule falls under this definition does not depend on whether "the rule affects a litigant's substantive rights; most procedural rules do."³⁸ Instead, the test depends on "what the rule itself regulates: If it...