Ziankovich v. Large

• Decision Date: 18 September 2019
• Docket Number: Civil Action No. 17-cv-02039-CMA-NYW
• Parties: YOURAS ZIANKOVICH, Plaintiff, v. BRYON M. LARGE, and JESSICA E. YATES, Defendants.
• Court: U.S. District Court — District of Colorado

YOURAS ZIANKOVICH, Plaintiff, v. BRYON M. LARGE, and JESSICA E. YATES, Defendants.

Civil Action No. 17-cv-02039-CMA-NYW

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

September 18, 2019

Judge Christine M. Arguello

ORDER AFFIRMING AND ADOPTING THE RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE AND DENYING AS MOOT PLAINTIFF'S FOURTH MOTION FOR PRELIMINARY INJUNCTION

This matter is before the Court on the Recommendation by United States Magistrate Judge Nina Y. Wang that Defendants Byron M. Large and Jessica E. Yate's Motion to Dismiss Under Fed. R. Civ. P. 12(b)(6) (Doc. # 52) be converted into a Motion for Summary Judgment (Doc. # 62) and granted against Plaintiff Youras Ziankovich. (Doc. # 69.) Based on this Court's extensive examination of the pleadings, supplemental filings, and applicable legal authority, the Court affirms and adopts the Recommendation and dismisses Plaintiff's case with prejudice.

I. BACKGROUND AND PROCEDURAL HISTORY

The Magistrate Judge's Recommendation (Doc. # 69) and this Court's Order Affirming and Adopting the October 5, 2017 Recommendation of United States Magistrate Judge (Doc. # 23) provided a thorough recitation of the factual and procedural background of this dispute and is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b). Accordingly, this Order will reiterate only what is necessary to address Plaintiff's objections.

The following facts are undisputed. Plaintiff maintained legal offices in New York and Colorado. (Doc. # 12.) He held a law license from New York State and has never been admitted as an attorney in Colorado. (Id.; Doc. # 70 at 4, ¶ 3.) Plaintiff practiced immigration law in Colorado before the U.S. District Court for the District of Colorado, the Executive Office of Immigration Review, and the Department of Homeland Security. (Doc. # 70 at 4, ¶ 2.)

Defendant Jessica E. Yates¹ is Colorado's Attorney Regulation Counsel and was appointed by the Colorado Supreme Court to regulate the practice of law in Colorado. (Doc. ## 18, 56-57.) Defendant Byron M. Large is an attorney for Colorado's Office of Attorney Regulation Counsel ("OARC"). (Id.) As Attorney Regulation Counsel, Defendants are responsible for maintaining and supervising Colorado's OARC. (Id.) OARC conducts investigations and prosecutes disciplinary actions against attorneys who have allegedly violated the Colorado Rules of Professional Conduct. Colo. R. Civ. P. 251.3(c)(3)-(c)(4), 251.10. OARC's regulatory jurisdiction includes attorneys licensed to practice in Colorado, as well as attorneys licensed by other states who practice before federal courts and regulatory agencies in Colorado. Colo. R. Civ. P. 8.5(a). Animpartial hearing board ("Hearing Board"), which includes the Colorado Supreme Court's presiding disciplinary judge ("PDJ"), presides over OARC's cases. Colo. R. Civ. P. 251.16-18. The Hearing Board's disciplinary decisions may be appealed to the Colorado Supreme Court. Colo. R. Civ. P. 251.27(a).

A. STATE DISCIPLINARY ACTION

This dispute arises out of OARC's attorney discipline action against Plaintiff, Case No. 17PDJJ037 ("State Disciplinary Action").² See (Doc. # 14, Doc. # 64-4 at 1-13.) On June 1, 2017, Plaintiff filed with the PDJ a motion to dismiss the State Disciplinary Action on the grounds that OARC lacked jurisdiction to investigate and sanction attorneys with law licenses from other states and with practices limited to federal court matters. (Doc. # 14-3; Doc. # 48 at ¶ 12.) After the parties briefed that issue, see (Doc. # 14-4), the PDJ denied Plaintiff's motion to dismiss on July 13, 2017 (Doc. # 14-5). Therein, the PDJ concluded that the Office of the Presiding Disciplinary Judge of the Colorado Supreme Court had jurisdiction over Plaintiff and could adjudicate the OARC claims brought against him. (Id.) The Colorado Supreme Court declined to hear Plaintiff's interlocutory appeal. (Doc. # 14-8.) The State Disciplinary Action proceeded against Plaintiff. (Doc. # 14-9.)

On March 5, 2018, Defendants moved for summary judgment on all eight claims asserted against Plaintiff (Doc. # 52-1 at 1), and the PDJ granted in part that motion forsummary judgment, entering judgment in Defendants' favor on six claims (id. at 13). The PDJ set the remaining two claims for a two-day disciplinary hearing. (Id.)

On March 28, 2018, Plaintiff filed his Hearing Brief with the OARC before his hearing commenced. (Doc. # 52-5.) In his brief, Plaintiff asserted the following defenses that are pertinent to the instant Recommendation:

1) lack of subject matter jurisdiction;

4) violation of Plaintiff's right for due process;

14) Discipline action in any form violates [Plaintiff's] right to procedural due process under the Fourteenth Amendment of the United States Constitution and the Constitution of the State of Colorado, violates the Interstate Commerce Clause of the United States Constitution, violates the [Plaintiff's] rights under the First Amendment to the United States Constitution and the Constitution of the State of Colorado, violates the [Plaintiff's] rights under the Fifth Amendment to the United States Constitution and the Constitution of the State of Colorado, was commenced in violation of the 42 U.S.C. § 1983, is beyond of this Court and the State of Colorado authority, and therefore fails to state a cause of action upon which disciplinary action, suspension, or disbarment may be granted[.]

(Id. at 5-6.)

On April 10 and 11, 2018, Plaintiff and Defendants participated in a disciplinary hearing (the "Hearing") before the Hearing Board, which consisted of the PDJ, an attorney, and a lay member. (Doc. # 52-2 at 3.) At the beginning of the Hearing, Defendants withdrew one of the two remaining claims, and Plaintiff moved to dismiss the case for lack of jurisdiction while alleging that he did not receive requisite written notice of the hearing. (Id.) The Hearing Board denied Plaintiff's motion to dismiss after Plaintiff confirmed he had participated in setting the hearing and received the PDJ's Scheduling Order. (Id.) Throughout the Hearing, the Hearing Board consideredstipulated exhibits, Plaintiff's proffered exhibit, and the testimony provided by Plaintiff, Plaintiff's former clients, and expert witness Lisa Green. (Id. at 3, 6-8.)

On May 31, 2018, the Hearing Board issued its Opinion and Decision Imposing Sanctions under Colo. R. Civ. P. 251.19(b) (Doc. # 52-2 at 1) to which Plaintiff filed a Colo. R. Civ. P. 59 Post-Trial Motion (Doc. # 52-6). In Plaintiff's Post-Trial Motion, he raised previously asserted defenses, including his steadfast objection to the OARC's jurisdiction over him. (Id.) The Hearing Board denied Plaintiff's Post-Trial Motion as to his substantive challenges but granted Plaintiff's request to strike two sentences. (Doc. # 52-7.) On June 20, 2018, the Hearing Board issued an Amended Opinion and Decision ("Amended Opinion"). (Doc. # 52-2 at 1 n.1); People v. Ziankovich, 433 P.3d 640 (Colo. O.P.D.J. 2018).

The underlying substantive analysis of the Hearing Board's initial opinion was unchanged in its Amended Opinion. (Doc. # 52-2 at 1.) The Hearing Board determined that Plaintiff was guilty of violating several Colorado Rules of Professional Conduct and suspended him from practicing law in Colorado for one year and one day, with three months to be served, and the remainder stayed upon the successful completion of a two-year probation period, subject to certain conditions. (Id. at 21-23.) The Hearing Board rejected Plaintiff's defenses, including his challenge to jurisdiction and argument that the disciplinary action violated the Commerce Clause and his due process, constitutional, and statutory rights. (Id. at 12-15.)

On July 9, 2018, Plaintiff appealed the Hearing Board's decision to the Colorado Supreme Court (Doc. # 52-4 at 16), and, on October 28, 2018, Plaintiff filed his OpeningBrief (id. at 1). In his Opening Brief, Plaintiff raised his previously asserted objection to the OARC's jurisdiction to discipline him and that such disciplinary action constituted a violation of due process of law. (Id. at 9.) On February 1, 2019, the Colorado Supreme Court issued an Order and Mandate affirming the Hearing Board's Amended Opinion. (Doc. # 52-3.)³

B. FEDERAL ACTION

After Defendants initiated the State Disciplinary Action against Plaintiff, Plaintiff commenced this federal action pro se on August 24, 2017 ("Federal Action"). (Doc. # 1.) Plaintiff sought declaratory judgment that Defendants did not have jurisdiction to initiate the State Disciplinary Action against him because he has never been licensed to practice law by Colorado and does not practice before Colorado state courts or agencies, rather, he practices federal immigration law in the federal courts in Colorado. (Id.); see also (Doc. # 14-1.)

On August 31, 2017, Plaintiff filed his first Motion for TRO. (Doc. # 5.) The Court referred the motion to Magistrate Judge Wang on September 6, 2017. (Doc. # 9.) Magistrate Judge Wang issued an Order to Show Cause, directing Plaintiff to explain why his case should not be dismissed for lack of subject matter jurisdiction. (Doc. # 11.) Plaintiff then filed his first Amended Complaint on September 10, 2017, which Magistrate Judge Wang understood to be his Response to the Order to Show Cause. See (Doc. # 12.) The Amended Complaint suggests that Plaintiff invokes the Court'sfederal question jurisdiction under 28 U.S.C. § 1331, and that Plaintiff asserts claims against Defendants pursuant to 42 U.S.C. § 1983 for violations of his First, Fifth, and Fourteenth Amendment rights, as well as a claim for violations of the Commerce Clause. (Id.) Plaintiff seeks declaratory relief and attorney fees. (Id.) Magistrate Judge Wang recommended that Plaintiff's first Motion for TRO be denied as moot in light of Plaintiff's Amended Complaint and discharged the Order to Show Cause on September 12, 2017. (Doc. # 13.) This Court affirmed and adopted that recommendation on ...