Giannini v. United States District Court for the Northern District of California et al

Filing 30

ORDER DISMISSING CASE WITH PREJUDICE. Signed by Judge Donald W. Molloy on 2/8/2013. (dle, COURT STAFF) (Filed on 2/8/2013)

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

JOSEPH ROBERT GIANNINI,

3:12-cv-04289-DWM

Plaintiff,
vs.

ORDER

UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF
NORTHERN CALIFORNIA, CHIEF
JUDGE JAMES WARE, WILLIAM
ALSUP, EDWARD M. CHEN,
SUSAN Y. ILLSTON, RICHARD
SEEBORD, JEFFREY S. WHITE,
SAUNDRA BROWN ARMSTRONG,
PHYLLIS J. HAMILTON, CLAUDIA
WILKEN, EDWARD DAVILA,
LUCY KOH, and YVONNE
GONZALEZ ROGERS,
Defendants.

I.

Introduction
Joseph Robert Giannini filed this case seeking declaratory and injunctive

relief from a pre-filing order (the Paciulan pre-filing order). That order requires
him to present any complaint challenging the regulation of or admission to the

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practice of law in California to the Chief Judge of this court for review and
approval before filing. He did not do so in this case. Plaintiff has named twelve
individual Article III judges and the United States District Court for the Northern
District of California as Defendants. All of the Defendants have moved to dismiss
the complaint. Giannini responded to the motion to dismiss and at the same time
filed a motion for summary judgment which was incorporated by reference in his
response to the motion to dismiss.
Attorney Giannini has a 25-year history of filing lawsuits challenging the
regulation of the practice of law in California on constitutional grounds.1 In
Paciulan, the genesis of the pre-filing order, Judge Illston found “abundant
evidence that this case is legally frivolous and was filed for an improper purpose.”
Paciulan v. George, 38 F. Supp. 2d 1128, 1146 (N.D. Cal. 1999).2 Multiple
lawsuits instigated by Mr. Giannini establish a long history of litigation
1

Plaintiff has challenged federal and state rules governing the admission to practice law
in California in the following cases: Giannini v. Committee of Bar Examiners, 847 F.2d 1434
(9th Cir. 1988); Giannini v. Real, 911 F.2d 354 (9th Cir. 1990), cert. denied, 498 U.S. 1012
(1990); Morissette v. Yu, No. 92-03252 (C.D. Cal. 1992); Morissette v. Yu, No. 92-03253 (C.D.
Cal. 1992); Morissette v. Yu, No. 93-56288 (9th Cir. Mar. 8, 1994); 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); Blye v. Kozinski, 466 Fed. Appx. 650 (9th Cir.
2012); Blye v. California Supreme Court, No. 11-80153 (N.D. Cal. 2011); Blye v. California
Supreme Court, No. 11-05046 (pending before this Court); Garcia v. California Supreme Court,
No. 12-04504 (stayed before this Court).
2

Frivolous in a legal context means time-wasting, pointless or insignificant because of its
legal history or improper purpose.

2

challenging admission to and regulation of the practice of law in California. Id. at
1146-47. The Paciulan pre-filing order constrains Plaintiff from filing new cases
challenging the regulation of the practice of law in California either as an attorney
or a party unless he first obtains leave of the Chief Judge of this Court. Id. at 1147.
The reasonable limitation on new cases mandates only that Mr. Giannini submit a
declaration showing the matters in the new case have not been previously raised
by him, either as an attorney or party, or disposed of in federal or state court; that
the claims were not frivolous or made in bad faith; and that he conducted a
reasonable investigation into the facts before filing the matter. Id.
In this particular case Mr. Giannini seeks modification or dissolution of
Judge Illston’s Paciulan pre-filing order. Defendants want his case dismissed
because the Court lacks jurisdiction to entertain this relief, or alternatively, the
complaint does not present a claim for which relief might be granted.
II.

Discussion
The jurisdictional aspects of the motion to dismiss must be addressed first

because jurisdiction is a threshold matter which limits the judicial power of the
federal courts to decide the merits of a case. See Steel Co. v. Citizens for a Better
Environment, 523 U.S. 83, 94 (1998). Dismissal under Rule 12(b)(1) is proper
when a court lacks subject matter jurisdiction over a claim. The principle
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underlying this proposition is that federal courts are courts of limited jurisdiction.
Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). “[A] court of the
United States may not grant relief absent a constitutional or valid statutory grant of
jurisdiction.” U.S. v. Bravo-Diaz, 312 F.3d 995, 997 (9th Cir. 2002). “A federal
court is presumed to lack jurisdiction in a particular case unless the contrary
affirmatively appears.” Stock West, Inc. v. Confederated Tribes, 873 F.2d 1221,
1225 (9th Cir. 1989). “When subject matter jurisdiction is challenged under Fed.
R. Civ. P. 12(b)(1), the plaintiff has the burden of proving jurisdiction in order to
survive the motion.” Tosco Corp. v. Communities for a Better Environment, 236
F.3d 495, 499 (9th Cir. 2001).
In my view this case must be dismissed under Federal Rule of Civil
Procedure 12(b)(1) for lack of subject matter jurisdiction. Attorney Giannini lacks
standing to sue Judges Alsup, Chen, Seebord, White, Armstrong, Hamilton,
Davila, Koh, and Rogers named in the complaint. As to the Chief Judges Ware and
Wilken and Judge Illston, judicial immunity is an absolute bar to the Court’s
authority to hear the case. These rulings are made understanding that the Paciulan
pre-filing order does not bar this lawsuit, and that the challenge to the pre-filing
order is misdirected. “The road not taken” to challenge the terms of Judge Illston’s
order in the past is the one that dictates Giannini seek relief from the effects of that
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constraint either by appeal or by extraordinary writ, not through injunctive and
declaratory relief against a multiplicity of federal judges and the Court.
A.

The Paciulan Pre-Filing Order
The Paciulan pre-filing order prevents Plaintiff from filing further actions

in this Court, either as an attorney or party, challenging regulation of the practice
of law in California, without first seeking leave and approval from the Chief
Judge. Paciulan, 38 F. Supp. 2d at 1146-47. This particular suit is not barred by
the pre-filing order, because it is not a direct challenge to admission to and
regulation of the practice of law in California. Rather, it is a challenge to the prefiling order itself.
The All Writs Act, 28 U.S.C. 1651(a), grants the court inherent judicial
power to enter pre-filing orders regarding vexatious, and repeated litigation by the
same party or person. Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1057
(9th Cir. 2007); see also Wood v. Santa Barbara Chamber of Commerce, Inc., 705
F.2d 1515, 1524 (9th Cir. 1983) (holding district courts have power to reinforce
effects of the preclusion doctrines by issuing an injunction against repetitive
litigation). Molski articulated four factors district courts are to consider before
entering a pre-filing order: (1) notice and opportunity to be heard, (2) creation of
an adequate record, (3) findings of frivolousness or harassment, and (4) tailoring
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of the order to prevent abusive behavior. Id. at 1057-58. Each of these factors is
met in the Paciulan pre-filing order. Judge Illston’s order is not subject to
modification based on the record in this case.
There is no procedural defect to the Paciulan pre-filing order because
Giannini was afforded notice and an opportunity to be heard and the Court created
an adequate record for appellate review. Before entering the order, Judge Illston
heard argument on two occasions—July 24 and September 4, 1998. At the first
hearing, Plaintiff requested a continuance, which was granted. The Court asked for
supplemental briefing on the issue of sanctions, which Plaintiff filed late. Even
though the Giannini’s supplemental filing about sanctions was not timely, Judge
Illston considered it before crafting the well-reasoned pre-filing order following
the second hearing. Attorney Giannini chose the road less traveled and did not
challenge the pre-filing order in his appeal. Because of this tactical decision the
Court of Appeals determined review of the pre-filing order had been waived.
Paciulan, 229 F.3d at 1230.
Judge Illston made substantive findings about the frivolous and harassing
nature of Plaintiff’s litigation. In the Paciulan pre-filing order, Judge Illston
explained in detail that Plaintiff’s claims had been previously rejected by at least
two courts and that only frivolous warrants were offered in support of Plaintiff’s
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argument that the law had changed. Id. The Paciulan pre-filing order is narrow in
scope. It is limited to a category of litigation about admission to and regulation of
the practice of law in the state and federal courts in California. Id. at 1147. When
the order was entered, Mr. Giannini had filed and lost no fewer than six such
cases, including complaints “raising virtually identical claims on virtually
identical grounds.” Id. The narrow tailoring of the order impacts Plaintiff’s
frivolous and harassing conduct while leaving him free to file other types of cases.
Insisting that the pre-filing order precludes this case is misplaced. The
complaint challenges the validity of the pre-filing order; it does not present
challenges to admission to or regulation of the practice of law in California.
Consequently the pre-filing order is no bar to the challenge.
Part of what Giannini wants is to modify the pre-filing order. Citing United
States v. Swift & Co., he insists a court retains power to modify an injunction in
light of changed circumstances. 286 U.S. 106 (1932). In the same vein he claims
Fed. R. Civ. P. 60(d)(1) gives a court the power to hear a challenge seeking to
relieve a party from a judgment, order, or other proceeding.
Neither of these authorities support the modification or dissolution of the
pre-filing order entered by Judge Illston. Moy v. United States sets out a roadmap
for challenging a pre-filing order. 906 F.2d 467 (9th Cir. 1999). In Moy, a litigant
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subject to a pre-filing order appealed its entry to the circuit court. Id. at 470. The
panel found jurisdiction to review the appeal. Id. In this context, it is fair to infer
the proper way for Mr. Giannini to challenge the Paciulan pre-filing order is either
to appeal the order in the first instance or seek an extraordinary writ from the
Court of Appeals.
B.

Standing
Attorney Giannini has no standing to bring this suit against Judges Alsup,

Chen, Seebord, White, Armstrong, Hamilton, Davila, Koh, and Rogers. Standing
is “an essential and unchanging part of the case or controversy requirement of
Article III.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). To establish
“a case or controversy” within the meaning of Article III, a plaintiff must show she
has suffered (1) an injury in fact that is (a) concrete and particularized and (b)
actual or imminent, not conjectural or hypothetical; (2) a causal connection
between the injury and the conduct complained of; and (3) that it is likely, as
opposed to merely speculative, that the injury will be redressed by a favorable
decision. Id. at 560-61. “The party invoking federal jurisdiction bears the burden
of establishing these elements.” Id. at 561.
Neither in his complaint nor on briefs or at argument was Giannini or his
counsel able to make a specific claim of injury directly traceable to an act of
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Judges Alsup, Chen, Seeborg, White, Armstrong, Hamilton, Davila, Koh, or
Rogers. “A plaintiff must allege personal injury fairly traceable to the defendant’s
allegedly unlawful conduct and likely to be redressed by the requested relief.”
Allen v. Wright, 468 U.S. 737, 751 (1984) (citing Valley Forge Christian College
v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 471
(1982)). The failure here, among others, is that Plaintiff’s standing arguments
focus entirely on conjecture that future suits will be blocked by the judges of this
Court based on the Paciulan pre-filing order. This restatement of the substantive
legal argument in Giannini’s complaint does not show a case or controversy exists
as to Judges Alsup, Chen, Seeborg, White, Armstrong, Hamilton, Davila, Koh, or
Rogers. They had and have nothing to do with this lawsuit. There is no specific
injury attributable to any of these judges that could be redressed by a favorable
decision to Mr. Giannini on the merits in this case. There is no standing to sue any
of these judicial officers.
Plaintiff does have standing to pursue his complaint against Judge Illston, as
she is the judicial officer who entered the pre-filing order. He has identified acts
by Judge Illston in entering and enforcing the pre-filing order which constrain his
ability to file repeated or vexatious suits over state and federal bar admission rules
in California.
9

Likewise he has standing to pursue his complaint against the Court and the
Chief Judge.3 The acts of the Northern District and its Chief Judge are
distinguishable from the other judicial defendants because the pre-filing order
enlists the administrative power of the Chief Judge to determine the viability of
Mr. Giannini’s claims pursuant to the terms of the pre-filing order and invokes the
authority of the Northern District of California in enforcing its terms. According to
the Paciulan pre-filing order, Plaintiff has to present any challenge to the
California Bar Examination to the Chief Judge for review before the case is filed.
Paciulan, 38 F. Supp. 2d at 1147. The Paciulan order is an ongoing and
continuous regulation of Plaintiff’s right to file claims in the Northern District
federal court. The relief Plaintiff seeks, an injunction or declaratory judgment
vacating the order, could redress this purported harm. “It can scarcely be doubted
that, for a plaintiff who is injured or faces the threat of future injury due to illegal
conduct ongoing at the time of suit, a sanction that effectively abates that conduct
and prevents its recurrence provides a form of redress.” Friends of the Earth,
Inc.v. Laidlaw Environmental Services, Inc., 528 U.S. 167, 185-86 (2000).
There are sufficient allegations of injury in fact caused by the remaining

3

Judge James Ware is identified as “Chief Judge” in the caption of the complaint. Judge
Ware has since retired. Judge Claudia Wilkin is now Chief Judge of this Court.

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defendants that could be redressed by a favorable decision on the merits in this
action. Giannini has standing to pursue his claims against the Northern District,
and Judges Illston, Ware, and Wiliken. As to Judges Alsup, Chen, Seeborg, White,
Armstrong, Hamilton, Davila, Koh, and Rogers Plaintiff has not met his burden to
establish standing; claims against these defendants are dismissed with prejudice
pursuant to Federal Rule of Civil Procedure 12(b)(1).
C.

Immunity
Judges of this Court are absolutely immune from suit under the doctrine of

judicial immunity. The Court and its officers are similarly immune under the
doctrine of quasi-judicial immunity. These conclusions, taken together, are
sufficient grounds for dismissal with prejudice of the remaining defendants
pursuant to Federal Rule 12(b)(1).
Judicial immunity bars lawsuits against judges for acts undertaken in their
judicial capacity while acting on proper jurisdiction. See Mireles v. Waco, 502
U.S. 9, 11-12 (1991). The doctrine protects “judicial independence by insulating
judges from vexatious actions prosecuted by disgruntled litigants.” Forrester v.
White, 484 U.S. 219, 225 (1988). “The judicial or quasi-judicial immunity
available to federal officers is not limited to immunity from damages, but extends
to actions for declaratory, injunctive and other equitable relief.” Mullis v.
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Bankruptcy Court for the District of Nevada, 828 F.2d 1385, 1394 (9th Cir. 1987).
There are limits to judicial immunity. “A judge lacks immunity when he acts
‘in the clear absence of all jurisdiction,’ or performs an act that is not ‘judicial’ in
nature.” Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986) (internal citations
omitted). The Ninth Circuit has identified four factors to apply in deciding
whether an act was judicial in nature. The things to be considered are whether:
“(1) the precise act is a normal judicial function; (2) the events occurred in the
judge’s chambers, (3) the controversy centered around a case then pending before
the judge; and (4) the events at issue arose directly and immediately out of a
confrontation with the judge in his or her official capacity.” Duvall v. County of
Kitsap, 260 F.3d 1124, 1133 (9th Cir. 2001).
Entry and continued enforcement of the Paciulan pre-filing order is
undeniably a judicial act. Such orders entered to restrict behavior of vexatious
litigants are a normal judicial function, drawing on a court’s inherent authority to
manage its affairs. See 28 U.S.C. § 1651; Molski, 500 F.3d at 1057. A vexatious
litigant restriction centers on cases proposed or pending before the Court.
Challenge to such an order is an event arising directly and immediately out of
confrontation with a judge in his or her official capacity. Under these principles
and the factors articulated by the Court of Appeals in Duvall, Judges Wilken,
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Ware, and Illston are immune from suit for issuing and enforcing the pre-filing
order.
Mr. Giannini takes the position that the principle of judicial immunity does
not bar prospective injunctive relief against a judicial officer acting in an official
capacity. He cites Pullam v. Allen for this proposition. 466 U.S. 522 (1984). He
also argues the Court’s decision in Frazier v. Heebe, Chief Judge, United States
District Court for the Eastern District of Louisiana exercised supervisory,
regulatory responsibility over rules of admission and supports the finding of
jurisdiction for the Court to hear the case. 482 U.S. 641 (1987).
Mullis is binding authority for the notion that declaratory and injunctive
relief is not available against federal judicial officers protected by the doctrine of
judicial immunity. In Mullis, the Ninth Circuit rejected a request for declaratory
and injunctive relief against a judicial officer, holding that where a “federal
official meets the prerequisites for judicial or quasi-judicial immunity from
damages, there will invariably be an adequate remedy through either ordinary
appeals or by extraordinary writ.”4 828 F.3d at 1391. The Mullis court reasoned
that a grant of injunctive relief would permit a horizontal appeal from judicial

4

Plaintiff declined to challenge the Paciulan pre-filing order on appeal. See
Paciulan, 229 F.3d at 1230.
13

rulings and recognized the impropriety of such a collateral attack. Id. at 1393.
Pullam provides no harbor to Plaintiff’s claim against the federal judicial
Defendants. The Supreme Court decided Pullam based on the legislative history of
18 U.S.C. § 1983, concluding that history showed an intent to abrogate judicial
immunity in those cases. 466 U.S. at 540-43. This case is not a § 1983 action and
the holding in Pullam is accordingly not on point. Mullis provides absolute
immunity for judicial officers in the context of this lawsuit even where declaratory
and injunctive relief is the remedy sought. The Ninth Circuit discussed Pullam in
its decision in Mullis, rejecting its application to federal judicial officers outside
the context of a § 1983 action and holding that procedures for appeal and
extraordinary writ provide a remedy for review of claims of depravation of a
federal constitutional right by federal judicial officials. Mullis 828 F.2d at 1394.
Frazier is similarly unhelpful to Plaintiffs. There, an attorney challenged the
federal court’s rules of admission, which were tied to a residency requirement, by
extraordinary writ to the Fifth Circuit. 482 U.S. at 643-44. The Supreme Court
found the district court’s requirement that members of the Louisiana Bar who
apply for admission to the federal district court bar live in or maintain an office in
Louisiana was beyond the court’s authority. Frazier 482 U.S. at 645. This holding
is hand in glove with the Ninth Circuit precedent in Mullis, where the use of
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extraordinary writ — not collateral attack — was the proper avenue for seeking
relief from acts of a federal judicial official. It is worth noting that Frazier
questioned a residence requirement, not a competency requirement.
Plaintiff has named the Northern District Court as a defendant. Defendants
claim the Court and its officers are immune from suit under the doctrine of quasijudicial immunity. Their analysis centers on the Clerk of Court. Although the
Clerk of Court is not named as a defendant, Giannini’s efforts to restrain or
declare the rights of the Court implicate the authority of the Clerk of Court. There
is no jurisdiction over this claim because “clerks have absolute quasi-judicial
immunity from damages for civil rights violations when they perform tasks that
are an integral part of the judicial process.” Mullis, 828 F.2d at 1390. Quasijudicial immunity shields the Clerk of Court from Plaintiff’s claims, just as the
doctrine of judicial immunity absolutely bars claims against the remaining federal
judicial defendants. To allow suits against the Clerk for complying with court
rules and orders would be a certain invitation to mischief.
III.

Conclusion
This case is dismissed for lack of subject matter jurisdiction. Plaintiff lacks

standing to sue Judges Alsup, Chen, Seebord, White, Armstrong, Hamilton,
Davila, Koh, and Rogers named in the complaint and the doctrine of judicial
15

immunity is an absolute bar to the Court’s authority to hear this case as to Chief
Judges Ware and Wilken as well as Judge Illston and the Northern District Court.
Plaintiff’s challenge to the Paciulan pre-filing order is misdirected. To challenge
the terms of the order, controlling authority dictates that he seek relief by
extraordinary writ, or timely appeal, rather than by seeking injunctive and
declaratory relief against federal judges and the Court.
Accordingly, IT IS ORDERED Defendants’ motion to dismiss (doc. 11) is
GRANTED. This matter is dismissed with prejudice and the Clerk of Court shall
close the case.
IT IS FURTHER ORDERED Plaintiff’s motion for summary judgment
(doc. 17) is DENIED.
DATED this 8th day of February, 2013.

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