Ziankovich v. Large, No. 20-1030
| Decision Date | 23 October 2020 |
| Docket Number | No. 20-1030 |
| Parties | YOURAS ZIANKOVICH, Plaintiff - Appellant, v. BRYON M. LARGE; JESSICA E. YATES, Defendants - Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
(D. Colo.)
ORDER AND JUDGMENT*Before HARTZ, McHUGH, and CARSON, Circuit Judges.
Plaintiff Youras Ziankovich, an attorney representing himself, appeals from the district court's decision granting summary judgment in favor of defendants Bryon M. Large and Jessica E. Yates and dismissing his amended complaint with prejudice. He also appeals from the district court's denial of his post-judgment motion seeking relief under Rule 60(b) of the Federal Rules of Civil Procedure. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we apply the firm waiver ruleas a bar to appellate review of the district court's summary judgment decision and dismiss that portion of the appeal. We affirm the district court's denial of the Rule 60(b) motion.
Mr. Ziankovich is licensed to practice law in New York. Although he did not have a Colorado law license, he maintained a law office in Colorado and practiced immigration law before the United States District Court for the District of Colorado, the Executive Office of Immigration Review, and the Department of Homeland Security.1
Ms. Yates is Colorado's Attorney Regulation Counsel and was appointed by the Colorado Supreme Court to regulate the practice of law in Colorado. Mr. Large is an attorney for Colorado's Office of Attorney Regulation Counsel ("OARC"). The dispute underlying this appeal arises out of OARC's disciplinary action against Mr. Ziankovich for violating the Colorado Rules of Professional Conduct and the federal complaint he filed to challenge that disciplinary action.2
Mr. Large, through OARC, filed a complaint against Mr. Ziankovich on behalf of the People of Colorado ("the People"). Mr. Ziankovich moved to dismiss the disciplinary action against him on the grounds that OARC lacked jurisdiction to investigate and sanction attorneys with law licenses from other states and withpractices limited to federal court matters. The presiding disciplinary judge (PDJ) denied the motion to dismiss, concluding there was jurisdiction over Mr. Ziankovich. The PDJ subsequently granted summary judgment in favor of the People on six claims. After briefing and a hearing on the remaining two claims, the Hearing Board (which consisted of the PDJ, an attorney, and a lay member) issued an Opinion and Decision in favor of the People.
The Hearing Board issued an Amended Opinion to grant Mr. Ziankovich's post-hearing motion requesting that two sentences be stricken. See People v. Ziankovich, 433 P.3d 640, 641 (Colo. O.P.D.J. 2018). The Board determined that Mr. Zankovich should be sanctioned for his breach of six ethical rules. See id. at 641, 656. It rejected Mr. Ziankovich's defenses—including his challenge to jurisdiction—as well as his arguments that the disciplinary action violated: procedural due process under the Fourteenth Amendment, the Commerce Clause, the First and Fifth Amendments, 42 U.S.C. § 1983, and the Colorado Constitution. See id. at 650-51.
During the pendency of the state disciplinary proceedings, Mr. Ziankovich filed a pro se complaint in federal district court seeking a declaratory judgment that defendants, acting through OARC, did not have authority to maintain an attorney disciplinary action against him. He alleged he has never been licensed to practice law in Colorado and does not practice law in Colorado state courts or agencies; rather, he practices only in federal courts and agencies in Colorado. In response to a show-cause order, Mr. Ziankovich filed an amended complaint, asserting claimsagainst defendants pursuant to § 1983 for violations of his First, Fifth, and Fourteenth Amendment rights, as well as a claim for violations of the Commerce Clause. Defendants moved to dismiss the amended complaint for lack of subject matter jurisdiction based on the abstention doctrine set forth in Younger v. Harris, 401 U.S. 37 (1971).3
The district court granted the motion and dismissed the amended complaint without prejudice. Mr. Ziankovich appealed. Because the state disciplinary proceedings had ended when we issued our decision, we vacated the district court's dismissal of Mr. Ziankovich's complaint under Younger and remanded to the district court to consider it. See Ziankovich v. Large, 745 F. App'x 800, 802 (10th Cir. 2018).
On remand, defendants moved to dismiss Mr. Ziankovich's amended complaint. They argued: (1) the OARC and PDJ had the authority to discipline Mr. Ziankovich for his provision of legal services to Colorado residents; (2) the complaint failed to state any plausible claims for relief; and (3) the doctrines of issue and claim preclusion barred the federal action.
The parties supplemented the record after the magistrate judge notified them of her intent to convert the motion to dismiss into a motion for summary judgment. In her report and recommendation, the magistrate judge determined that each ofdefendants' arguments independently warranted granting summary judgment in their favor. She therefore recommended that defendants' motion for summary judgment be granted and the claims be dismissed with prejudice. She also notified Mr. Ziankovich that he could file written objections to the report and recommendation and informed him that any objections "must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review." Aplt. App., Vol. 2 at 166 n.6 (internal quotation marks omitted).
Mr. Ziankovich filed objections to the report and recommendation. The district court first addressed issue preclusion, noting that resolving that argument first would prevent the need to address any of the other arguments. The district court determined that Mr. Ziankovich's objections as to issue preclusion were not sufficiently specific and did not warrant de novo review of the magistrate judge's decision. The district court therefore reviewed the decision on issue preclusion for clear error and ultimately affirmed and adopted the report and recommendation.
After the court entered judgment in favor of defendants, Mr. Ziankovich filed a Rule 60(b) motion seeking relief from the judgment, which the district court denied. He now appeals from the district court's decisions granting summary judgment in favor of defendants and denying his Rule 60(b) motion.
Mr. Ziankovich argues on appeal that: (1) the Colorado Supreme Court is without authority to regulate out-of-state attorneys; (2) defendants' acts violate hisconstitutional rights; (3) the district court erred when it dismissed his action with prejudice; and (4) the district court erred when it denied his motion to reconsider.
We have adopted a firm waiver rule requiring that "a party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review." United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996). In doing so, we explained that "only an objection that is sufficiently specific to focus the district court's attention on the factual and legal issues that are truly in dispute will advance the policies behind the Magistrate's Act that led us to adopt a waiver rule in the first instance." Id.
Here, the magistrate judge determined that issue preclusion barred Mr. Ziankovich's federal claims because the issues asserted in his federal complaint were actually and necessarily adjudicated in the disciplinary proceedings, he was a party to the disciplinary proceedings, those proceedings culminated in a decision on the merits, and he had a full and fair opportunity to litigate the issues in the disciplinary proceedings. In reviewing Mr. Ziankovich's objections, the district court observed that "'[t]he filing of objections to a magistrate's report enables the district judge to focus attention on those issues—factual and legal—that are at the heart of the parties' dispute, and gives the district court an opportunity to correct any errors immediately.'" Aplt. App., Vol. 2 at 229-30 (citations, brackets, and internal quotation marks omitted). It concluded that Mr. Ziankovich's objections were not"sufficiently specific," explaining that he was objecting "to the merits of the Hearing Board's Amended Opinion and his desire for [the district court] to overrule that opinion—not why the Magistrate Judge erred in ruling that issue preclusion should apply." Id. at 230. The district court therefore declined to review the magistrate judge's decision on issue preclusion de novo and instead reviewed the decision for clear error.
In his opening brief, Mr. Ziankovich does not address the district court's determination that his objections to the magistrate judge's decision were not sufficiently specific. In their response brief, defendants argue that Mr. Ziankovich has waived appellate review of the district court's summary judgment decision under the firm waiver rule by "fail[ing] to provide specific objections to the Magistrate Judge's issue preclusion analysis—the sole ground used by the district court to grant summary judgment." Aplee. Resp. Br. at 27. In his reply brief, Mr. Ziankovich asserts that whether he waived appellate review under the firm waiver rule "is not an issue for this Appeal, because the district court never put into basis of the decision this waiver." Aplt. Reply Br. at 2. We disagree. As discussed above and—as Mr. Ziankovich admits in his reply brief—the district court found his "'objection . . . insufficient to warrant de novo review.'" Id. . The district court explained in its decision that it "agree[d] with Defendants" that "Plaintiff waived his right to de novo review because Plaintiff's...
To continue reading
Request your trial