Thompson v. Florida Bar

• Decision Date: 20 November 2007
• Docket Number: No. 07-21256-CIV.,07-21256-CIV.
• Parties: John B. THOMPSON, Plaintiff v. The FLORIDA BAR, Francisco Angones, John Harkness, and Dava Tunis, Defendants.
• Court: U.S. District Court — Southern District of Florida

526 F.Supp.2d 1264

John B. THOMPSON, Plaintiff v. The FLORIDA BAR, Francisco Angones, John Harkness, and Dava Tunis, Defendants.

No. 07-21256-CIV.

United States District Court, S.D. Florida, Miami Division.

November 20, 2007.

Order Denying Motion for Reconsideration November 21, 2007.

COPYRIGHT MATERIAL OMITTED

John Bruce Thompson, Coral Gables, FL, pro se.

Karusha Young Sharpe, Greenberg Traurig, PA., Tallahassee, FL, Charles M. Fahlbusch, Attorney General Office, Fort Lauderdale, FL, for Defendants.

Norman Elliott Kent, Fort Lauderdale, FL, pro se.

ORDER OF DISMISSAL WITHOUT PREJUDICE

ADALBERTO JORDAN, District Judge.

In this lawsuit, John Thompson, a Florida lawyer, seeks to enjoin disciplinary proceedings that have been brought against him by the Florida Bar and to declare certain Florida Bar rules unconstitutional. The defendants named in Mr. Thompson's verified third amended complaint are the Florida Bar, Francisco Angones (the President of the Florida Bar), John Harkness (the Executive Director of the Florida Bar), and Judge Dava Tunis (in her capacity as the referee in the Florida Bar disciplinary proceedings). All of the defendants moved to dismiss Mr. Thompson's third amended complaint on various grounds, including Younger/Middlesex abstention, and the parties presented oral argument on the motions to dismiss on October 9, 2007. For the reasons which follow, the defendants' motions to dismiss [D.E. 113, 118] are GRANTED, and Mr. Thompson's third amended complaint is dismissed without prejudice on Younger/Middlesex abstention grounds. I do not address the defendants' other grounds for dismissal.

I. THE RULE 12(s)(6) STANDARD

Under Rule 12(b)(6), a court must "accept as true the facts stated in the complaint and all reasonable inferences therefrom." Jackson v. Okaloosa County, 21 F.3d 1531, 1534(11th Cir.1994). Review is limited to the four corners of the complaint and exhibits attached to or referenced in the complaint. See GSW, Inc. v. Long County, 999 F.2d 1508, 1510 (11 th Cir. 1993).

But not everything in a complaint is necessarily taken at face value. For example, "conclusory allegations, unwarranted deductions of facts or legal conclusions masquerading as facts will not prevent dismissal." Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir.2002). Thus, to "survive a motion to dismiss, [a] plaintiff[] must do more than merely state legal conclusions; [he] is required to allege some specific factual bases for those conclusions or face dismissal[.]" Jackson v. BellSouth Telecommunications, 372 F.3d 1250, 1263 (11th Cir.2004). As the Supreme Court recently explained, a plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, ___ U.S. ___, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007).

II. THE WELL-PLEADED ALLEGATIONS AND CLAIMS IN THE THIRD AMENDED COMPLAINT¹

Mr. Thompson's 45-page verified third amended complaint is is a "shotgun" pleading in violation of established Eleventh. Circuit law, as each of the three counts improperly incorporates by reference all of the allegations in the previous counts. For example, Count III realleges and incorporates by reference the complaint's previous 100 paragraphs, including those that comprise Counts I and n. "[T]his type of pleading completely disregards Rule 10(b)'s requirement that discrete claims should be plead in separate counts ... and is the type of complaint that [the Eleventh Circuit] has criticized time and again." Magluta v. Samples, 256 F.3d 1282, 1284 (11th Cir.2001). Despite Mr. Thompson's violation of the Federal Rules of Civil Procedure, all of the relevant allegations in the complaint are summarized below.

A. BACKGROUND

This lawsuit concerns the Florida Bar's current disciplinary proceedings against Mr. Thompson. The allegations contained in the complaint nevertheless go back to 1990.

Approximately 20 years ago, Mr. Thompson heard a Miami shock jock, Neil Rogers, solicit teenage boys for sex on the public airwaves. He complained to the FCC, and as a result of his complaint, the FCC levied its first decency fines in 1989 against the radio stations that aired Mr. Rogers' comments. Mr. Rogers responded to Mr. Thompson's complaint by filing SLAPP (Strategic Litigation Against Public Participation) lawsuits against Mr. Thompson through his attorney, Norman Kent (who is, according to the complaint, a "gay rights" lawyer). See Complaint at ¶¶ 13-45.

Mr. Kent collaborated with the former chairman of the Florida ACLU to persuade the Florida Bar to proceed against Mr. Thompson on the basis that his anti-pornography obsession left him mentally unfit to practice law. Around 1990, the Florida Bar secured an ex parte order from the Florida Supreme Court mandating that Mr. Thompson submit to a battery of tests to determine if he was insane. This order, and the testing, were made public and destroyed Mr. Thompson's legal career at the time. The Florida Bar's experts determined that Mr. Thompson was sane and simply acting out his Christian faith. The Florida Bar's insurance carrier later paid Mr. Thompson money damages for what he had to undergo. See id. at ¶¶ 15-16.

In the last 16 years Mr. Thompson has published a book on his activism and faith, and has appeared on roughly 250 national and international television programs regarding "the commercial assault by the entertainment industry" on children. He has also secured more FCC decency fines, granted over 1,000 radio interviews around the world, appeared on 200 college campuses, addressed the ABA several times, and helped obtain (as amicus curiae) the first federal court verdict holding that a sound recording was obscene. According to Mr. Thompson, entertainment companies like Sony, Microsoft, and Time-Warner routinely make and market adult products to children and file SLAPP lawsuits against their critics. See id. at ¶ 17.

In February of 2004, Mr. Thompson forced the removal of Howard Stern from Clear Channel radio stations throughout the United States for making indecent comments on the air. In August of 2004, Mr. Thompson filed FCC complaints against Beasley Broadcast Group, Inc. for airing, on a South Florida radio station, indecent material by Mr. Stern. Mr. Stern complained that "this lunatic lawyer" (i.e., Mr. Thompson) got him off the air. Mr. Thompson also wrote government officials, including then-Florida Governor Jeb Bush, about the "criminal" activity going on at Beasley Broadcast's Miami station, WQAM. See id. at ¶¶ 18, 20.

Days after Mr. Thompson filed the FCC complaints against Beasley Broadcast, Mr. Kent filed a "wave" of SLAPP Bar disciplinary complaints against Mr. Thompson and threatened Mr. Thompson with new Bar "lunacy" proceedings. Beasley Broadcast's outside counsel, Al Cardenas (a close friend of Governor Bush) and the law firm of Tew Cardenas, together with the CFO of Beasley Broadcast, also field a "massive" SLAPP Bar complaint against Mr. Thompson in retaliation for the letters he had written to government officials about Beasley Broadcast. See id. at ¶¶ 19, 20.

The Tew Cardenas/Beasley Broadcast complaints are still pending. This, according to the complaint, is despite the offer of the Florida Bar's counsel, Sheila Tuma, to dismiss them with prejudice. See id. at ¶ 21.

The Florida Bar's outside investigator, David Pollack, assured Mr. Thompson that Mr. Kent's complaint "was gone," and his written report confirmed that. Mr. Kent's complaint, however, was only dismissed with prejudice by the Florida Bar after two and a half years. That complaint lasted as long as it did because Ben Kuehne, "a left wing ideologue," served for nearly three years as the "designated reviewer" in the SLAPP disciplinary proceedings brought against Mr. Thompson.² Mr. Thompson unsuccessfully sought to have Mr. Kuehne removed as his "designated reviewer," and Mr. Kuehne—in "apparent pursuit of his ideological agenda"—overrode the recommendation of the Florida Bar's own investigator and persuaded Grievance Committee 11-F to find probable cause as to the baseless charges brought against Mr. Thompson by Mr. Kent. This was an attempt by Mr. Kuehne and the Florida Bar to "chill" Mr. Thompson's First Amendment rights. See id. at ¶¶ 22-25, 56. In fact, according to Mr. Thompson, the Florida Bar's actions have been an intentional attempt to punish him for exercise of his First Amendment rights. See id. at ¶¶ 76, 84.

In March of 2005, days before Grievance Committee 11-F found probable cause, Mr. Thompson appeared on 60 Minutes to discuss the "central role" that. Take Two's Grand Theft Auto: Vice City video game played in a triple homicide of three Alabama police officers.³ Years earlier, Mr. Thompson had appeared on 60 Minutes to discuss the "clear and proven role" of violent entertainment in the school massacres at Paducah, Kentucky, and Columbine High School. Mr. Thompson had "predicted Columbine one week before it happened on NBC's Today show." In retaliation for his appearance on 60 Minutes, the law firm of Blank Rome, which acted as counsel for Take-Two, "fraudulently obtained revocation" of Mr. Thompson's pro hac vice admission to practice in Alabama to pursue the wrongful death action, (apparently involving the deaths of the policemen). See id. at ¶¶ 27-30.

B. THE BLANK ROME/JUDGE MOORE COMPLAINTS AGAINST MR. THOMPSON

Blank Rome also filed SLAPP complaints against Mr. Thompson with the Florida Bar. These complaints are currently pending. In addition, the Florida Bar and the Alabama state judge who presided over the murder trial of the person accused of killing the policemen, Judge James Moore, filed their own complaints against Mr. Thompson. These complaints concern Mr. Thompson's statement that he had been told by a prominent Alabama lawyer that he could fix the murder case before Judge Moore, as well as a claim that Mr. Thompson had hidden his disciplinary history from the Alabama courts in order...