Lively v. Alabama State Bar (MAG+)

Filing 31

MEMORANDUM OPINION AND ORDER directing as follows: (1) Mr. Lively's 27 motion for leave to file a second amended complaint is DENIED; (2) The Magistrate Judge's 23 Recommendation is ADOPTED; (3) The State Bar's 17 Motion to Dismiss is GRANTED; (4) The 7 amended complaint is DISMISSED without prejudice. Signed by Chief Judge William Keith Watkins on 3/18/13. (scn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
RICHARD D. LIVELY,
Plaintiff,
v.
ALABAMA STATE BAR,
Defendant.

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) CASE NO. 2:12-CV-459-WKW
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[WO]
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MEMORANDUM OPINION AND ORDER
Pending before the court are Defendant’s motion to dismiss (Doc. # 17), the
Magistrate Judge’s Recommendation on the motion to dismiss (Doc. # 23), Plaintiff’s
“Objection” to that Recommendation (Doc. # 26), and Plaintiff’s motion for leave to
file a second amended complaint (Doc. # 27). This opinion will address them all. For
the reasons that follow, this case is due to be dismissed.
I. BACKGROUND AND PROCEDURAL HISTORY
As far as this case is concerned, Plaintiff Richard D. Lively’s troubles began
when he was suspended from the practice of law by Defendant the Alabama State Bar.
After unsuccessfully challenging his suspension all the way to the Alabama Supreme
Court, Mr. Lively sued the State Bar in this court. Although his theory of the case has
evolved, the fundamental premise of his claim remains static: Rule 12(e) of the
Alabama Rules of Disciplinary Procedure, which affords attorneys facing disciplinary

charges “reasonable notice of the alleged misconduct,” Ala. R. Disciplinary P. 12(e),
is unconstitutional.
When the Magistrate Judge expressed doubts as to the court’s subject matter
jurisdiction (Doc. # 5), Mr. Lively changed his approach and amended his complaint
(Doc. # 7). The State Bar moved to dismiss that amended complaint (Doc. # 17),
citing the Rooker–Feldman doctrine and arguing Mr. Lively’s constitutional challenge
is res judicata because he could have raised it in the disciplinary proceedings. Mr.
Lively responded in opposition. (Doc. # 21).
A.

The Recommendation of the Magistrate Judge
The Magistrate Judge was not entirely persuaded by the State Bar’s arguments

that the Rooker–Feldman doctrine deprives this court of subject matter jurisdiction,
and she did not address its res judicata argument. Instead, she decided, sua sponte,
that Mr. Lively lacks standing to pursue this case and recommended the court grant
the State Bar’s motion to dismiss on that ground. (Doc. # 23.)
Mr. Lively responded with a filing that (though framed as an objection)
immediately conceded the Magistrate Judge’s conclusion was correct: “The Court
very thoroughly considered Plaintiff’s Amended Complaint in light of the pleading
requirements to bring the case within the parameters of Article III. As [pled], the
Amended Complaint is deficient in meeting Article III’s burden of standing.” (Doc.
# 26, at 1.)
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B.

The Motion to Amend
But the case did not end there. Mr. Lively’s objection was accompanied by a

motion for leave to file a second amended complaint (Doc. # 25), which the State Bar
opposes (Doc. # 29). Mr. Lively insists his proposed second amended complaint cures
the problems with the first.
The State Bar disagrees. Although it acknowledges the court must grant leave
to amend “freely” whenever justice so requires, see Fed. R. Civ. P. 15(a)(2), the State
Bar argues that the proposed amendment is futile, and that allowing it would cause
undue delay and prejudice.
II. DISCUSSION
Due to the procedural posture of this case, a ruling on the pending motion to
amend must precede consideration of the Magistrate Judge’s Recommendation. If the
motion to amend were granted, after all, the pending motion to dismiss (and by
implication, the Magistrate Judge’s Recommendation on that motion) would be moot.
See, e.g., Jones Creek Investors, LLC v. Columbia Cnty., Ga., No. CV-11-174, 2012
WL 694316, at *3 n.5 (S.D. Ga. Mar. 01, 2012) (“It is well-settled that a timely filed
amended pleading supersedes the original pleading, and that motions directed at
superseded pleadings are to be denied as moot.” (quotations omitted)). But as the
following discussion will show, Mr. Lively’s motion to amend is due to be denied

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because his proposed amendment is futile. Once the motion to amend is put to rest,
this opinion will turn to the Recommendation of the Magistrate Judge.
A.

Mr. Lively’s proposed amendment is futile.
Mr. Lively believes his proposed amended complaint cures the jurisdictional

deficiencies of the first. It does not. Standing, at its irreducible constitutional
minimum, requires Mr. Lively to show “(1) [he] has suffered an injury in fact that is
(a) concrete and particularized and (b) actual or imminent, not conjectural or
hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant;
and (3) it is likely, as opposed to merely speculative, that the injury will be redressed
by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC),
Inc., 528 U.S. 167, 180–81 (2000) (quotations omitted). Mr. Lively’s complaint
alleges he suffered actual injury in the form of a suspension (which left him unable,
for a time, to ply his trade) and faces imminent injury should the disciplinary board
act on any of the four disciplinary matters currently pending against him with the State
Bar. Assuming Rule 12(e) is, as Mr. Lively contends, unconstitutional on its face,
then it also appears that his injuries are fairly traceable to the State Bar’s application
of that Rule in the proceedings against him. Accordingly, this opinion will assume,
without deciding, that Mr. Lively’s proposed amendment satisfies the first two
requirements of standing. But that still leaves the requirement of redressability. That
is where Mr. Lively’s case falls apart.
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Assume the court grants Mr. Lively leave to file his proposed amendment, the
case progresses, he prevails on the merits, and the court grants the declaratory relief
he seeks. What then? Mr. Lively would still be suspended from the practice of law,
and the decision of the disciplinary board would stand. After all, Mr. Lively’s
proposed amendment does not ask the court to set aside the disciplinary panel’s order
(an apparent acknowledgment of the Rooker-Feldman problems such a request would
pose). Further, because Mr. Lively’s proposed amendment “abandon[s] his request
for injunctive relief,” (Doc. # 27, at 1), an order granting declaratory judgment in his
favor would not be accompanied by an order for the State Bar to do (or not do)
anything.1
Mr. Lively, however, insists that a declaratory judgment is all he needs to
vindicate his rights, and he predicts a favorable ruling would redress his injuries in
four ways:
(1)

it would provide a “basis for [him] to petition the Alabama
State Bar Disciplinary Board for relief from the suspension
order” (Doc. # 27-1 ¶ 50);

(2)

it would “effectively invalidat[e] Rule 12(e) . . . for future
application against [him]” (Doc. # 27-1 ¶ 51);

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The first amended complaint included a request for a preliminary injunction only.
(Doc. # 7, at 11.) It sought no form of permanent injunctive relief, nor did it ask the court to
enjoin enforcement of Rule 12(e).
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(3)

it would force the State Bar “to implement a new ‘notice
rule’” that would protect his rights in any future
disciplinary proceedings (Doc. # 27-1 ¶ 52) ; and

(4)

it would “serv[e] as a judicial affirmation that [his] rights
were violated by the manner in which his disciplinary
proceedings were prosecuted” (Doc. # 27-1 ¶ 53).

None of those results, however, is likely to follow if the court rules in Mr. Lively’s
favor.
Mr. Lively’s predictions all assume that the disciplinary panel is bound by this
court’s opinion on the constitutionality of Rule 12(e).

That assumption is

unwarranted. The decisions of the lower federal courts do not bind state courts when
they act in a judicial capacity. See Doe v. Pryor, 344 F.3d 1282, 1286 (11th Cir.
2003) (“The only federal court whose decisions bind state courts is the United States
Supreme Court.”). In all important respects, the disciplinary board was acting
judicially when it suspended Mr. Lively from the practice of law, and it would be
acting in that capacity were Mr. Lively to petition it for relief from the suspension
order. In future proceedings, the disciplinary panel is no more bound to follow this
court’s interpretation of the law than this court is bound to follow the precedents of
state trial courts – that is, not at all.
Mr. Lively’s fourth prediction, that a declaratory judgment would “serve as a
judicial affirmation that [his] rights were violated” (Doc. # 27-1 ¶ 53), would not
redress his injuries because other courts could consider the question of Rule 12(e)’s
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constitutionality and issue an opinion affirming that his rights were not violated. In
any event, the State Bar maintains that it is powerless to effect any change in Rule
12(e) because only the Alabama Supreme Court (which is not a party to this action)
possesses that authority. (Doc. # 29, at 5.) The declaratory relief Mr. Lively seeks
would be little more than a prohibited advisory opinion, the reasoning of which the
disciplinary panel could accept or reject at its discretion in any future proceedings.
U.S. v. Rivas-Gomez , 456 F. App’x. 789, 789 (11th Cir. 2012) (“It is . . .
well-established that federal courts lack jurisdiction to issue advisory opinions.”).
Because Mr. Lively lacks standing to pursue his proposed amended complaint,
his motion to amend is due to be denied for futility. See Hall v. United Ins. Co. of
Am., 367 F.3d 1255, 1262–1263 (11th Cir. 2004) (“[A] district court may properly
deny leave to amend the complaint under Rule 15(a) when such amendment would be
futile.”).
B.

The Magistrate Judge’s Recommendation is due to be adopted.
Although Mr. Lively filed an “objection” to the ruling of the Magistrate Judge,

he unreservedly conceded the soundness of its conclusion. Upon an independent and
de novo review of the record, the court agrees with the Magistrate Judge and finds Mr.
Lively’s first amended complaint is due to be dismissed.

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III. CONCLUSION
It is therefore ORDERED as follows:
(1)

Mr. Lively’s motion for leave to file a second amended complaint (Doc.
# 27) is DENIED;

(2)

The Magistrate Judge’s Recommendation (Doc. # 23) is ADOPTED;

(3)

The State Bar’s Motion to Dismiss (Doc. # 17) is GRANTED;

(4)

The amended complaint (Doc. # 7) is DISMISSED without prejudice.

An appropriate judgment will follow.
DONE this 18th day of March, 2013.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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