National Association for the Advancement of Multijurisdiction Practice (NAAMJP) et al v. California Supreme Court et al

Filing 110

ORDER DISMISSING CASE WITH PREJUDICE. Signed by Judge Donald W. Molloy on January 21, 2014. (dle, COURT STAFF) (Filed on 1/21/2014)

THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

TANESHA WALLS BLYE, et al.,

CV 11–5046–DWM

Plaintiffs,
vs.

ORDER

CALIFORNIA SUPREME COURT,
et al.,
Defendants.

This matter came before the Court for a hearing on the Motion to Dismiss
and Motion to Clarify and Modify the Pre-Filing Order brought by Defendant
California Supreme Court. (See Docs. 34, 86.) Defendant United States District
Court for the Northern District of California joins in the Motions and offers its
own Motion to Dismiss. (Doc. 74.) Defendants bring the Motion to Dismiss
pursuant to the pre-filing order entered in Paciulan v. George, 38 F. Supp. 2d
1128, 1147 (N.D. Cal. 1998), and Federal Rule of Civil Procedure 12(b)(6). (See
Docs. 34 and 74.) Having considered the parties’ briefs, the arguments of counsel,
and other documents on file in the instant case and the related Paciulan matter,
(see Doc. 12), the Motions to Dismiss are granted and the Motion to Clarify and

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Modify the Pre-Filing Order is denied. Plaintiffs’ Second Amended Complaint1 is
dismissed without leave to amend because most claims fail to meet the
requirements of the pre-filing order. Those claims that survive the pre-filing order
screen are subject to dismissal pursuant to Federal Rule of Civil Procedure
12(b)(1), as Federal Defendants’ sovereign immunity deprives this Court of
subject matter jurisdiction. In light of this conclusion, Plaintiffs’ Motion for
Summary Judgment, (Docs. 61-65), is denied as moot. The case is dismissed with
prejudice.
I.

Background
Among the inherent powers of the California Supreme Court is the power to

admit attorneys to practice. People ex rel. Mulford v. Turner, 1 Cal. 143, 150
(Cal. 1850). The power to determine the standards and requirements for
admission to the practice of law is an expression of the status of attorneys as an
officer of the court. In re Lavine, 41 P.2d 161, 162 (Cal. 1935). While admission
to the practice of law is ultimately a judicial function, “it is generally conceded
that the Legislature may prescribe reasonable rules and regulations for admission

1

The Second Amended Complaint is now the operative complaint in this matter. On
Plaintiffs’ own representation, it does not drastically differ from the Complaint. (See Doc. 89 at
45.) The State Defendants’ Motion to Dismiss was filed in response to the Complaint. The
Court finds the arguments it raises are fairly applicable to the Second Amended Complaint.
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to the bar which will be followed by the courts.” Id. This is a pragmatic
approach, grounded in the notion “that the separation of powers principle does not
command ‘a hermetic sealing off of the three branches of Government from one
another.’” Hustedt v. Workers’ Comp. Appeals Bd., 30 Cal. 3d 329, 338 (Cal.
1981) (in bank) (quoting Buckley v. Valeo, 424 U.S. 1, 121 (1976)). The
California Supreme Court and the California Legislature have acted on this
authority. The California Supreme Court has charged the California State Bar
with maintaining the Roll of Attorneys admitted to practice in California. Cal. R.
of Ct. 9.6. It has also acted to regulate the appearance and practice of attorneys
who are not members of the State Bar of California. See Cal. R. of Ct. 9.40 et seq.
This Federal District Court incorporates the California Supreme Court and the
state bar’s admission requirements by rule. See L.R. 11-1.
This case presents challenges to the rules governing admission to the
practice of law in California. Plaintiffs are a group of attorneys who wish to
practice law in California. California has no procedure for admission to the state
bar on motion. In addition to meeting other requirements, attorneys admitted to
the active practice of law in another United States jurisdiction for at least four
years must pass the California Bar Attorneys’ Examination. Plaintiffs have not
passed the examination and are therefore not entitled to be admitted to practice
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law before California state courts or the United States District Court for the
Northern District of California. Plaintiffs claim they should be entitled to apply
for admission to the California Bar on motion. Defendants are California state and
federal justices and judges and their respective courts.2
Plaintiffs are represented by Joseph Giannini. (See Doc. 108.) Giannini has
acted as party or attorney in a number of futile challenges to the validity of the
requirements for admission to practice law in federal and California state courts
dating back to 1987.3 He began this crusade after failing the California Bar
Examination in July 1986 and February 1987. Based on the string of previous
litigation over these issues, this Court entered a pre-filing order enjoining Giannini
from filing further actions as an attorney or a party regarding admission to and

2

Defendants California Supreme Court and the named justices thereof are referred to
herein as “State Defendants.” Defendants United States District Court for the Northern District
of California and the named judges thereof are referred to herein as “Federal Defendants.”
3

See Giannini v. Comm. of Bar Examrs., (C.D. Cal. 1987), aff’d, 847 F.2d 1434 (9th Cir.
1988) (per curiam); Giannini v. Real, 711 F. Supp. 992 (C.D. Cal. 1989), aff’d, 911 F.2d 354
(9th Cir. 1990), cert. denied, 498 U.S. 1012 (1990); Morissette v. Yu, Nos. 92-03252, 92-03253
(C.D. Cal. 1992), aff’d, Morissette v. Yu, 21 F.3d 1114 (9th Cir. 1994) (mem.); McKenzie v.
Rhenquist, No. 97-01792 (D.D.C. 1997), aff’d, 203 F.3d 52 (D.C. Cir. 1999) (mem.) (per
curiam), cert. denied, 531 U.S. 919 (2000), reh’g denied, 531 U.S. 1106 (2001); McKenzie v.
George, No. 97-0403 (N.D. Cal. 1997); McKenzie v. Wilson, No. 98-0580 (N.D. Cal. 1998);
Paciulan v. George, 38 F. Supp. 2d 1128 (N.D. Cal. 1999), aff’d, 229 F.3d 1226 (9th Cir. 2000),
cert. denied, 531 U.S. 1077 (2001); Id. at Doc. 98 (Order Denying Leave to File) (N.D. Calif.
April 2, 2010) (Walker, C.J.); Id. at Doc. 106 (Order Denying Leave to File) (N.D. Calif. Dec.
30, 2010) (Walker, C.J.); Id. at Doc. 107 (Order Rejecting Submission) (N.D. Calif Jan. 24,
2011) (Ware, C.J.); Blye v. Kozinski, No. 10-02014 (N.D. Cal. 2010), aff’d, 466 Fed. Appx. 650
(9th Cir. 2012), cert. denied, 132 S.Ct. 1975 (2012), reh’g denied, 132 S.Ct. 2794 (2012).
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regulation of the practice of law in the State of California without first obtaining
leave of the Chief Judge. Paciulan v. George, 38 F. Supp. 2d 1128, 1144-47
(N.D. Cal. 1999).
The original Complaint in this matter was filed on October 13, 2011. (Doc.
1.) The Complaint included the National Association for the Advancement of
Multijurisdiction Practice as a party Plaintiff. (Id.) The case was related to the
Paciulan matter, pursuant to Local Rule 3-12, on February 23, 2012. (Doc. 12.)
A case management conference was held before the Honorable Susan Illston on
July 3, 2012. (Doc. 33.) Defendant California Supreme Court filed a Motion to
Dismiss on August 24, 2012. (Doc. 34.) Plaintiffs filed their First Amended
Complaint on September 7, 2012, dropping the National Association for the
Advancement of Multijurisdiction Practice as a party Plaintiff and adding
Defendants Ninth Circuit Judicial Council and judges and the United States
District Court for the Northern District of California and judges. (Doc. 40.)
Because she was named as a party Defendant in the First Amended Complaint,
Judge Illston recused herself from the matter on September 10, 2012. (Doc. 41.)
The case was reassigned to the Honorable William Shubb on September 14, 2012.
(Doc. 44.) Plaintiffs’ moved for Judge Shubb’s recusal, (Doc. 51), and Judge
Shubb entered an order recusing himself from the case, (Doc. 52). The
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undersigned was designated to preside over this case and related matters on
November 2, 2012. (Doc. 53.)
Plaintiffs filed their Motion for Summary Judgment on November 24, 2012.
(Docs. 61-65.) Hearing was set on Defendants’ Motion to Dismiss. (Doc. 71.)
Plaintiffs’ Motion for Summary Judgment was held in abeyance. (Id.) Plaintiff
was granted leave to file a Second Amended Complaint, (id.), and did so on
December 10, 2012, (Doc. 73.) The Federal Defendants filed a Motion to Dismiss
and Notice of Joinder in the State Defendants’ Motion to Dismiss on December
14, 2012. (Doc. 74.) The Court heard argument on the Motions to Dismiss on
January 22, 2013. (Docs. 86, 89.) Following the argument, Giannini submitted to
the undersigned an ex parte application for leave to file this suit. (Doc. 88.)
Giannini later sought leave to appear as counsel to Plaintiff, (Doc. 98), moved to
dismiss the Ninth Circuit Judicial Council Defendants, (Doc. 99), and submitted
Requests for Judicial Notice, (Docs. 97, 102, 103, and 105). This written order
follows on the remaining dispositive motions in the case.
II.

Discussion
The pre-filing Order entered by this Court in Paciulan v. George requires

Joseph Giannini to meet conditions prior to filing any action, as attorney or party,
raising challenge to regulation of the practice of law in California. Specifically:
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Joseph R. Giannini is hereby ENJOINED from filing any further
actions, either as an attorney or a party, in the United States District
Court for the Northern District of California, regarding admission to
and the regulation of the practice of law in the State of California
without first obtaining leave of the Chief Judge of this court. If
Giannini wishes to file further actions regarding admission to and the
regulation of practice of law in California, Giannini must attach a
copy of this order to his application for leave to file such actions and
supply a declaration supporting the application stating: (1) that the
matters asserted in the new action have not previously been raised by
him, as an attorney or a party, and disposed of on the merits by any
court, state or federal; (2) that the claims are not frivolous or made in
bad faith; and (3) that Giannini has conducted a reasonable
investigation of the facts and certifies that they are accurate. Failure
to comply with any of these conditions shall be sufficient grounds to
deny the application or dismiss the action, and any violation of this
injunction may be treated as contempt of court.
Paciulan, 38 F. Supp. 2d at 1147.
The pre-filing order is applicable to this particular case. At the outset there
was some dispute regarding the applicability of the pre-filing order because
Giannini did not initially appear as an attorney or party. It is clear from the
hearing that he was the ghost writer for almost all of the pleadings and briefs. The
National Association for the Advancement of Multijurisdiction Practice, an
organization for which Giannini serves as a Founding Director, was initially
named as a party Plaintiff and later removed from the Complaint. (Compare Doc.
1 with Docs. 40, 73.) This configuration of the parties and the concealment of
Giannini’s status as an attorney for Plaintiffs was a deliberate and transparent
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attempt to circumvent the Paciulan pre-filing order.4 Concern over the
applicability of the pre-filing order has been put to bed because Giannini has since
sought, (Doc. 98), and has been granted leave to appear as attorney for Plaintiffs,
(Doc. 108). Furthermore, Plaintiffs and Mr. Giannini have stipulated to his direct
involvement in the drafting of pleadings and other documents in this case, (see
Docs. 89 at 38, 98-2 at 2), a matter hardly subject to denial. Giannini is an
attorney in this case, so the pre-filing is applicable.
The question now is the enforcement of the Paciulan pre-filing order. The
United States District Court for the Northern District of California and the Chief
Judge and all other Judges duly appointed to the Court have been named as party
Defendants to this matter. (See Doc. 73.) The Chief Judge of this Court referred
the matter to Judge Shubb, (see Docs. 41 and 44), who later determined that
assignment of a judge not recused by virtue of their status as a Defendant was
necessary, (Doc. 52). In light of the unavailability of the Chief Judge of this Court

4

State Defendants Filed a Motion for Leave to File a Supplemental Brief immediately
prior to the hearing on their Motion for Summary Judgment. (See Doc. 78.) The supplemental
brief, declaration, and exhibits lodged concurrent to the Motion sought to prove Mr. Giannini’s
involvement in this action. (See Docs. 79-84.) The documents lodged by State Defendants
include screenshots of file markup and metadata that remained a part of drafts of the Joint Case
Management Statement exchanged by the parties. These metadata definitively show Giannini’s
involvement in drafting the Joint Case Management Statement. (See Docs. 82 at 24; 83 at 1, 1417; 84 at 5-7, 10-11.) While State Defendants’ argument is an illustrative lesson in the potential
effect of inadvertent disclosure of metadata on litigation, Giannini’s appearance as an attorney in
this matter renders the argument moot.
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to adjudicate Plaintiffs’ Application for Leave to File, logic dictates that the
presiding judge must act on the application, given the disqualification and recusal
of the Northern District Chief Judge.
Plaintiffs’ Application is deficient as to claims advanced against the State
Defendants. In form, Plaintiffs have complied with the application procedure
specified by the pre-filing order. The application includes a copy of the Paciulan
decision, (Doc. 88-4), and a supporting declaration, (Doc. 88.) The supporting
declaration, however, fails to show that the matters at issue in this case against the
State Defendants have not been previously litigated and decided on the merits by
any court. The only assertion of novelty as to claims against the State Defendants
is the representation that the challenges to California Rules of Court 9.44-46
advanced by the Second Amended Complaint are distinguishable from the claims
at issue in Paciulan. (Id. at 16.) The claimed distinction is unpersuasive.
Paciulan raised a facial challenge to the constitutionality of the California Rule of
Court related to pro hac vice admission.5 38 F. Supp. 2d at 1130. Giannini
presents no distinguishing feature of his challenge to the current admission pro

5

The California Rules of Court were reorganized in 2007. The rule regarding admission
pro hac vice challenged in Paciulan has been renumbered from 983 to 9.40. See Conversion
Chart, at 27, http://www.courts.ca.gov/documents/rules_conversion_table_06_06_06__2_.pdf
(June 6, 2006).
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hac vice rule to warrant re-litigation of the claims raised and set aside in Paciulan.
The issues raised in this matter as to California Rules of Court 9.44-46, regarding
registered foreign legal consultants, registered legal services attorney, and
registered in-house counsel, are the same challenges to the rules of admission to
practice law in California as those raised in Paciulan. The claims made against
the State Defendants in the Second Amended Complaint are not novel. Leave to
file against the State Defendants is, accordingly, denied. Having withheld leave to
file claims against the State Defendants, the State Defendants’ Motion to Dismiss,
(Doc. 34), is well-taken so it is granted.
As to the Federal Defendants, Plaintiffs represent that the Supremacy
Clause, First Amendment, and Rules Enabling Act challenges to this Court’s Local
Rules advanced by the Second Amended Complaint have not been litigated and
decided and therefore meet the requirements of the Paciulan pre-filing order. This
representation is well-taken. Leave to file these complaints against the Federal
Defendants is granted. However the Second Amended Complaint is still subject to
crossing an impossible legal hurdle.
Sovereign immunity shields Federal Defendants from Plaintiffs claims and
deprives the Court of subject matter jurisdiction. Federal Defendants are the
United States District Court for the Northern District of California and the named
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judges thereof. (Doc. 73.) “Absent a waiver, sovereign immunity shields the
Federal Government and its agencies from suit.” FDIC v. Meyer, 510 U.S. 471,
475 (1994). When a entity acts within its official capacity, sovereign immunity
attaches, so long as it is not unequivocally waived by the United States. Hodge v.
Dalton, 107 F.3d 705, 707 (9th Cir, 1997). Plaintiffs fail to respond to Federal
Defendants’ sovereign immunity claim in their Response to Federal Defendants’
Motion to Dismiss. (See Doc. 76.) None of Plaintiffs’ pleadings establish a
waiver of sovereign immunity. The surviving claims are subject to dismissal
pursuant to Federal Rule of Civil Procedure 12(b)(1), as this Court lacks subject
matter jurisdiction to hear claims against the Federal Defendants named in this
action. See United States v. Mitchell, 445 U.S. 535, 538 (1980) (absent a waiver
of sovereign immunity a court lacks subject matter to entertain a suit against the
United States).
Modification of the pre-filing order is not warranted. State Defendants
move for clarification and modification of the Paciulan pre-filing order. (Doc. 34
at 23-25.) They claim that the pre-filing order should expressly include the
National Association for the Advancement of Multijurisidiction Practice within its
scope and be further enlarged enjoin any person, organization, or entity acting
with Giannini or the National Association. (Id.) A pre-filing order “is an
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extraordinary remedy that should be narrowly tailored and rarely used.” Moy v.
United States, 906 F.2d 467, 470 (9th Cir. 1990). Although Mr. Giannini has
made numerous claims challenging the rules governing admission to practice law
in California, see supra n.3, a pre-clearance requirement is not warranted simply
because of litigiousness. “[C]laims must not only be numerous, but also be
patently without merit.” Moy, 906 F.2d at 470. Many of the prior cases pursued
by Mr. Giannini sought to relitigate matters previously decided on the merits and
were patently without merit. This case includes a discreet set of claims against
Federal Defendants regarding the Local Rules of this Court that have not been
previously litigated. Expansion or modification of the pre-filing order is not
warranted at this time given the subset of claims made. Furthermore, vexatious
litigation is subject to sanction by virtue of Rule 11 and 28 U.S.C. § 1927.
Any attorney or other person admitted to conduct cases in any court
of the United States or any Territory thereof who so multiplies the
proceedings in any case unreasonably and vexatiously may be
required by the court to satisfy personally the excess costs, expenses,
and attorneys’ fees reasonably incurred because of such conduct.
28 U.S.C. § 1927. Such a penalty in this case, if warranted, is the statutory remedy
for Giannini’s continued pursuit of meritless claims.
III.

Conclusion
For the foregoing reasons, IT IS ORDERED that Plaintiffs’ Application for
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Leave to File, (Doc. 88), is GRANTED IN PART. The Order here resolves the
Supremacy Clause, First Amendment, and Rules Enabling Act claims raised
against the Federal Defendants. Leave to file all other claims, including all claims
raised against the State Defendants, is DENIED for failure to meet the
requirements of the Paciulan pre-filing order.
IT IS FURTHER ORDERED that State Defendants’ Motion to Dismiss,
(Doc. 34), is GRANTED. Federal Defendants’ Motion to Dismiss, (Doc. 74), is
GRANTED. The Orders to dismiss are with prejudice. The now-operative
Second Amended Complaint is DISMISSED WITHOUT LEAVE TO AMEND.
IT IS FURTHER ORDERED that State Defendants Motion for Leave to
File Supplemental Brief, (Doc. 78), IS DENIED AS MOOT.
IT IS FURTHER ORDERED that State Defendants’ Motion to Modify the
Pre-Filing Order, (Doc. 34), is DENIED.
IT IS FURTHER ORDERED that Plaintiffs’ Motion for Summary
Judgment, (Docs. 61-65), is DENIED AS MOOT.
IT IS FURTHER ORDERED that the Clerk of Court shall forthwith notify
the parties of this Order and shall close this case.
//
//
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DATED this 21st day of January, 2014.

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