Mitchell et al v. Howard et al

Filing 105

ORDER by Magistrate Judge Nina Y. Wang on 9/1/15. Motion for Accommodations for Learning Disability 89 is GRANTED in PART and DENIED in PART. Motion and Declaration of Indigent Pro Se seeking free access to the Public Access to Court Electronic Rec ords 96 is DENIED. The Mitchell's are DIRECTED to file Notice by 9/18/2015, identifying claims are being asserted by Ms. Mitchell and Samuel and against whom in any bifurcated matter. Plaintiff Lisa Mitchell's Notice of Entry of Appearance 91 is STRICKEN. Samuel is ORDERED to provide an address on or before 9/18/2015. (Attachments: # 1 Exhibit Westlaw Case-Sanders v. Funk)(bsimm, ) Modified on 9/2/2015 to add relationship to 91 (bsimm, ).

Page 1
Not Reported in F.Supp.2d, 2007 WL 1158531 (D.Colo.)
(Cite as: 2007 WL 1158531 (D.Colo.))

Only the Westlaw citation is currently available.
United States District Court,
D. Colorado.
Linda SANDERS, Plaintiff,
v.
Margaret FUNK, Colorado Attorney Regulatory
Board, and Supreme Court State of Colorado, Defendants.
Civil Action No. 07–cv–00192–LTB–CBS.
April 6, 2007.
Friedrick C. Haines, Colorado Attorney General's
Office–Tort Litigation, Denver, CO, for Defendants.
RECOMMENDATION AND ORDER OF UNITED
STATES MAGISTRATE JUDGE
CRAIG B. SHAFFER, Magistrate Judge.
*1 This civil action comes before the court on: (1)
Defendants' “Motion to Remand Pursuant to 28
U.S.C. § 1447(c) and to Abstain” (filed February 15,
2007) (doc. # 6); and (2) “Linda Sanders' Motion for
Leave to File Surreply to Address Newly Raised Issue” (filed March 12, 2007) (doc. # 13). Pursuant to
the Order of Reference dated January 29, 2007 (doc. #
3) and the memoranda dated February 16, 2007 (doc. #
7) and March 13, 2007 (doc. # 14), these matters were
referred to the Magistrate Judge. The court has reviewed the pending matters, Ms. Sanders' Response
(filed February 20, 2007) (doc. # 9), Defendants' Reply (filed March 8, 2007) (doc. # 12), Defendants'
Response (filed March 13, 2007) (doc. # 15), the
pleadings, the entire case file, and the applicable law
and is sufficiently advised in the premises.
I. Statement of the Case

This civil action arose out of a request for investigation of the unauthorized practice of law. (See attachment to Notice of Removal (doc. # 1–2) at pp. 3, 4
of 47). Pursuant to Colorado's Unauthorized Practice
of Law Rules, the Office of Attorney Regulation
Counsel for the Colorado Supreme Court commenced
an investigation into Ms. Sanders' alleged unauthorized practice of law. (See doc. # 1–2 at pp. 3–22 of 47).
Pursuant to Rule 232.5(f) of the Unauthorized Practice
of Law Rules, Regulation Counsel issued a Notice to
Take Deposition and a Subpoena to Produce. (See doc.
# 1–2 at pp. 24–26 of 47). Ms. Sanders moved to
quash the Notice to Take Deposition and a Subpoena
to Produce. (See doc. # 1–2 at pp. 28–42 of 47). On
January 25, 2007, the Colorado Supreme Court denied
Ms. Sanders' Petition to Quash. (See doc. # 1–2 at p.
47 of 47).
On January 26, 2007, Ms. Sanders filed a “Notice
of Removal ...” and “Verified Counterclaim” pursuant
to 28 U.S.C. § 1441(a) and (b) and § 1443(1). (See
docs. # 1 and # 2; see also Verified Amended Counterclaim (doc. # 10)). Ms. Sanders alleges that this
civil action “is removable because the Plaintiff/Petitioner in the state action (Attorney Regulation
Counsel, by and through the Colorado Supreme Court)
is moving against Linda Sanders without jurisdiction,
and threatening Sanders with fines and jail; and because the state action involves federal questions under
28 U.S.C. 1331.” (See Notice of Removal (doc. # 1) at
p. 1). In her “Verified Amended Counterclaim,” Ms.
Sanders alleges that Assistant Regulation Counsel, the
Office of Attorney Regulation Counsel, the Unauthorized Practice of Law Committee, and the Colorado
Supreme Court violated her rights under the Fourth
and Fifth Amendments to the United States Constitution and tortiously interfered with a contract. (See doc.
# 10).
Defendants move pursuant to 28 U.S.C. § 1447(c)

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Not Reported in F.Supp.2d, 2007 WL 1158531 (D.Colo.)
(Cite as: 2007 WL 1158531 (D.Colo.))
for remand to the Colorado Office of Attorney Regulation Counsel and the Unauthorized Practice of Law
Committee of the Colorado Supreme Court based on
lack of subject matter jurisdiction. Defendants alternatively move for this court to abstain from hearing
Ms. Sanders' claims pursuant to the Younger abstention doctrine. See Younger v. Harris, 401 U.S. 37
(1971).
II. Standard of Review
A. 28 U.S.C. § 1447
*2 “The district courts of the United States ... are
‘courts of limited jurisdiction. They possess only that
power authorized by Constitution and statute.’ “
Exxon Mobil Corp. v. Allapattah Servs., 545 U.S. 546,
552, 125 S.Ct. 2611, 162 L.Ed.2d 502 (2005) (quoting
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994)). A
civil action is removable only if plaintiffs could have
originally brought the action in federal court. 28
U.S.C. § 1441(a). The court is required to remand “[i]f
at any time before final judgment it appears that the
district court lacks subject matter jurisdiction.” 28
U.S.C. § 1447(c).
The remand of a case after removal to federal
court is limited to the grounds specified in 28 U.S.C. §
1447(c), which states:
A motion to remand the case on the basis of any
defect other than lack of subject matter jurisdiction
must be made within 30 days after the filing of the
notice of removal under section 1446(a). If at any
time before final judgment it appears that the district
court lacks subject matter jurisdiction, the case shall
be remanded.... The State court may thereupon
proceed with such case.
Miller v. Lambeth, 443 F.3d 757, 759 (10th
Cir.2006).

Remand is authorized under § 1447(c) only when
there is a defect in the removal procedure under §
1447(a) or if the district court lacks subject matter
jurisdiction. 28 U.S.C. § 1447(c). See also Miller, 443
F.3d at 759 (“The two categories of remand within §
1447(c), ... are remands for lack of subject matter
jurisdiction and for defects in removal procedure”);
Kennedy v. Lubar, 273 F.3d 1293, 1297 (10th
Cir.2001) (“Section 1447(c) specifically allows district courts to order remand if there has been a defect
in removal procedure, or if it determines, at any time
prior to final judgment, that it lacks subject matter
jurisdiction”) (internal quotation marks omitted).
B. Younger Abstention Doctrine
“Younger abstention dictates that federal courts
not interfere with state court proceedings by granting
equitable relief—such as injunctions of important
state proceedings or declaratory judgments regarding
constitutional issues in those proceedings—when such
relief could adequately be sought before the state
court.” Rienhardt v. Kelly, 164 F.3d 1296, 1302 (10th
Cir.1999). “The Supreme Court has established three
factors to be relevant to [the court's] decision as to
whether abstention is required under Younger.”
Chapman v. Oklahoma, 472 F.3d 747, 749 (10th
Cir.2006) (citation omitted). “These factors ask [the
court] to determine whether:
(1) there is an ongoing state criminal, civil, or administrative proceeding, (2) the state court provides
an adequate forum to hear the claims raised in the
federal complaint, and (3) the state proceedings
involve important state interests, matters which
traditionally look to state law for their resolution or
implicate separately articulated state policies.
Chapman, 472 F.3d at 749 (citation omitted).
“Once these three conditions are met, Younger abstention is non-discretionary and, absent extraordinary
circumstances, a district court is required to abstain.”

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Not Reported in F.Supp.2d, 2007 WL 1158531 (D.Colo.)
(Cite as: 2007 WL 1158531 (D.Colo.))
Chapman, 472 F.3d at 749 (internal quotation marks
and citation omitted).
III. Analysis
A. Remand
*3 Defendants seek remand under § 1447(c) because there is no basis for federal jurisdiction over this
action. As the party invoking federal jurisdiction, Ms.
Sanders bears “the burden of proving that federal
jurisdiction is proper.” Plog v. Colorado Assn. of Soil
Conservation Districts, 841 F.Supp. 350, 351
(D.Colo.1993). See also Baby C v. Price, 138 Fed.
Appx. 81 (10th Cir.2005) (“[t]he removing party has
the burden to demonstrate the appropriateness of removal from state to federal court”) (citing McNutt v.
General Motors Acceptance Corp., 298 U.S. 178, 189,
56 S.Ct. 780, 80 L.Ed. 1135 (1936)).
Ms. Sanders argues that the federal court has jurisdiction over this action based upon her Counterclaims. However, “plaintiff's purported federal law
counter claim does not create federal question jurisdiction, nor can jurisdiction be conferred by counterclaim.” See Rivet v. Regions Bank of Louisiana, 522
U.S. 470, 471, 118 S.Ct. 921, 139 L.Ed.2d 912 (1998)
(“removal of a case to federal court may not be predicated on the presence of a federal defense”) (citation
omitted); Baby C v. Price, 138 Fed. Appx. at 81
(“Except for narrow circumstances not present here, ‘a
case may not be removed to federal court solely because of a defense or counterclaim arising under federal law’ ”) (quoting Topeka Housing Authority v.
Johnson, 404 F.3d 1245, 1247 (10th Cir.2005)).
Ms. Sanders further claims that Defendants are
“impair[ing]” her “contract authorized by” the Power
of Attorney Act, Colo.Rev.Stat. § 15–1–1301. (See
doc. # 9 at p. 3 (emphasis in original)). However, the
authorization to act under a power of attorney is not an
authorization to practice law. Both state and federal

courts agree that a statutory power of attorney may not
be used to circumvent state law prohibitions on the
unauthorized practice of law. See, e.g., Title 28 U.S.C.
§ 1654 (federal law allows two types of representation
in court: that by an attorney admitted to the practice of
law by the applicable regulatory body, and that by a
person representing himself); Harris v. Philadelphia
Police Dept., 2006 WL 3025882 (E.D.Pa.2006)
(“federal courts do not permit a non-attorney to engage in the unauthorized practice of law by pursuing
an action pro se with the plaintiff's power of attorney”); DePonceau v. Pataki, 315 F.Supp.2d 338, 341
(W.D.N.Y.2004) (authority conferred on another by a
power of attorney could not be used to circumscribe
state laws that prohibit the practice of law by anyone
other than a licensed attorney); People ex rel. Field on
Behalf of Field v. Crenshaw, 138 A.D.2d 765, 526
N.Y.S.2d 579 (N.Y.A.D.1988) (“New York law prohibits the practice of law in this state on behalf of
anyone other than himself or herself by a person who
is not an admitted member of the bar, regardless of the
authority purportedly conferred by execution of a
power of attorney”); Shell, 148 P.3d at 175 (relying on
stipulation that statutory powers of attorney did not
allow respondent to act as an attorney at law); Kohlman v. Western Pennsylvania Hospital, 438 Pa.Super.
352, 652 A.2d 849, 852–53 (Pa.Super.1994) (rejecting
claim that an agent authorized to act for a pro se litigant may bring suit for that person as contrary to the
constitution, the laws, and the public policy of Pennsylvania); Drake v. Superior Court, 21 Cal.App.4th
1826, 26 Cal.Rptr.2d 829 (Cal.App.4th 1994) (power
of attorney is not a vehicle which authorizes an attorney in fact to act as an attorney at law).
*4 Regulation of the unauthorized practice of law
is a state matter. Doyle v. Oklahoma Bar Assn., 998
F.2d 1559, 1569 n. 6 (10th Cir.1993) (citation omitted). “Article VI of the Colorado Constitution grants
the Colorado Supreme Court jurisdiction to regulate
and control the practice of law in Colorado to protect
the public.” Smith v. Mullarkey, 121 P.3d 890, 891
(Colo.2005) (citations omitted), cert. denied, 547 U.S.

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Not Reported in F.Supp.2d, 2007 WL 1158531 (D.Colo.)
(Cite as: 2007 WL 1158531 (D.Colo.))
1071, 126 S.Ct. 1792, 164 L.Ed.2d 519 (2006).
“Colorado law prohibits the unauthorized practice of
law, i.e., the practice of law by a person who is not a
licensed attorney in good standing with the State Bar.”
People v. Shell, 148 P.3d 162, 170 (Colo.2006) (en
banc ) (citation omitted), petition for cert. filed (Mar
19, 2007). The Colorado Supreme Court's jurisdiction
to regulate and control the practice of law in Colorado
“is exclusive.” Smith v. Mullarkey, 121 P.3d at 891
(citations omitted). See also Shell, 148 P.3d at 170
(Colorado Supreme Court “has the exclusive authority
to punish the unauthorized practice of law with contempt”). Ms. Sanders' purported counterclaims do not
create federal question jurisdiction.
Moreover, Ms. Sanders' putative counterclaims
are legally suspect. Ms. Sanders alleges that she is
acting under a statutory power of attorney that is not
an authorization to practice law. Further, the Tenth
Circuit has held that “absolute prosecutorial immunity
... extends to ‘bar officials charged with the duties of
investigating, drawing up, and presenting cases involving attorney discipline,’ and that such officials
‘enjoy absolute immunity from damage claims for
such functions.’ “ McCormick v. City of Lawrence,
Kansas, 253 F.Supp.2d 1156, 1165–66 (D.Kan.2003)
(quoting Clulow v. State of Oklahoma, 700 F.2d 1291,
1298 (10th Cir.1983), overruled on other grounds,
731 F.2d 640, 648–51 (10th Cir.1983) (en banc ) and
827 F.2d 675 (10th Cir.1987)). It “is clear that investigating the unauthorized practice of law—though
removed from the judicial process—is a function that
warrants absolute immunity.” McCormick, 253
F.Supp.2d at 1166. Nevertheless, it is not for this court
to determine the merits of the investigation into the
alleged unauthorized practice of law by Ms. Sanders.
In sum, this civil action is properly remanded for
lack of subject matter jurisdiction in federal court.
B. Younger Abstention Doctrine
In the alternative, even if the court had subject
matter jurisdiction over this action, the three condi-

tions of the Younger abstention doctrine are met in this
case. See Chapman, 472 F.3d at 749.
First, Ms. Sanders is involved in a state civil
proceeding that is ongoing and judicial in nature. Ms.
Sanders filed this federal action in the midst of the
state proceedings, one day after the Colorado Supreme
Court denied her Petition to Quash the Notice to Take
Deposition and Subpoena to Produce.
Second, Ms. Sanders has not shown that the state
court is not an adequate forum to hear her defenses
and constitutional challenges to the investigation for
alleged unauthorized practice of law. See Chapman,
472 F.3d at 749 (10th Cir.2006) (citing Joseph A. ex.
rel Wolfe v. Ingram, 275 F.3d 1253, 1274 (10th
Cir.2002) (holding that Younger abstention cannot be
avoided by purported class action as long as individual
relief can be provided by state court)).
*5 Finally, the investigation of Ms. Sanders' alleged unauthorized practice of law implicates a matter
of paramount state interest. See Middlesex Ethics
Committee v. Gaden State Bar Assn., 457 U.S. 423,
434, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982) (“States
traditionally have exercised extensive control over the
professional conduct of attorneys). Regulation and
control of the practice of law in Colorado is within the
exclusive jurisdiction of the Colorado Supreme Court.
Smith v. Mullarkey, 121 P.3d at 891. See also Unauthorized Practice of Law Committee of Supreme of
Colorado v. Grimes, 654 P.2d 822, 823 (Colo.1982)
(“It is within our authority to promulgate rules governing the admission and regulation of lawyers, as
well as prohibitions against the unauthorized practice
of law”). The state's interest is further demonstrated by
the fact that the Office of Attorney Regulation Counsel and the Colorado Supreme Court are named as
Defendants in the instant action.
The conditions of the Younger abstention doctrine
having been met, the court must abstain under

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

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Not Reported in F.Supp.2d, 2007 WL 1158531 (D.Colo.)
(Cite as: 2007 WL 1158531 (D.Colo.))
Younger from hearing Ms. Sanders' claims. This civil
action is properly dismissed based on the Younger
abstention doctrine. See Gibson v. Berryhill, 411 U.S.
564, 577, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973)
(“Younger v. Harris contemplates the outright dismissal of the federal suit ...”).
IV. Ms. Sanders' Motion for Leave to File Surreply
Ms. Sanders seeks to file a surreply to address “a
new issue” raised by the Defendants. Ms. Sanders'
proposed surreply once again addresses the merits of
the investigation of the unauthorized practice of law.
Ms. Sanders' proposed surreply does not address any
new issues or shed any further light on the issues
before this court.
Accordingly, IT IS ORDERED that “Linda
Sanders' Motion for Leave to File Surreply to Address
Newly Raised Issue” (filed March 12, 2007) (doc. #
13) is DENIED. Ms. Sanders' Surreply tendered on
March 12, 2007 (doc. # 13–2) is rejected.
Further, IT IS RECOMMENDED that:
1. Defendants' “Motion to Remand Pursuant to 28
U.S.C. § 1447(c) and to Abstain” (filed February 15,
2007) (doc. # 6) be GRANTED and that this civil
action be remanded to the Colorado Office of Attorney
Regulation Counsel and the Unauthorized Practice of
Law Committee of the Colorado Supreme Court.
2. In the alternative, this civil action be dismissed
based on the Younger abstention doctrine.
3. Should this action be remanded, a certified
copy of the order of remand shall be mailed by the
Clerk of the Court to the Colorado Office of Attorney
Regulation Counsel and the Unauthorized Practice of
Law Committee of the Colorado Supreme Court. See
28 U.S.C. § 1447(c).
Advisement to the Parties

Within ten days after service of a copy of the
Recommendation, any party may serve and file written objections to the magistrate judge's proposed
findings and recommendations with the Clerk of the
United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); In re
Griego, 64 F.3d 580, 583 (10th Cir.1995).
*6 The district judge shall make a de novo determination of those specific portions of the proposed
findings or recommendations to which specific objection is made. 28 U.S.C. § 636(b)(1). A general
objection that does not put the district court on notice
of the basis for the objection will not preserve the
objection for de novo review. See In re Griego, 64
F.3d at 583; United States v. One Parcel of Real
Property Known As 2121 East 30th Street, Tulsa,
Oklahoma, 73 F.3d 1057, 1060 (10th Cir.1996). The
district judge may accept, reject, or modify, in whole
or in part, the findings or recommendations made by
the magistrate judge. 28 U.S.C. § 636(b)(1).
“[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.” One Parcel of
Real Property, 73 F.3d at 1060. Failure to make timely
objections may bar de novo review by the district
judge of the magistrate judge's proposed findings and
recommendations and will result in a waiver of the
right to appeal from a judgment of the district court
based on the proposed findings and recommendations
of the magistrate judge. See Vega v. Suthers, 195 F.3d
573, 579–80 (10th Cir.1999) (district court's decision
to review a magistrate's recommendation de novo
despite the lack of an objection does not preclude
application of the “firm waiver rule”); One Parcel of
Real Property, 73 F.3d at 1059–60 (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); International Surplus Lines Insurance Co. v. Wyoming Coal Refining Systems, Inc., 52

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Not Reported in F.Supp.2d, 2007 WL 1158531 (D.Colo.)
(Cite as: 2007 WL 1158531 (D.Colo.))
F.3d 901, 904 (10th Cir.1995) (by failing to object to
certain portions of the magistrate's order,
cross-claimant had waived its right to appeal those
portions of the ruling); Ayala v. United States, 980
F.2d 1342, 1352 (10th Cir.1992) (by their failure to
file objections, plaintiffs waived their right to appeal
the magistrate's ruling). But see, Morales–Fernandez
v. INS, 418 F.3d 1116, 1122 (10th Cir.2005) (firm
waiver rule does not apply when the interests of justice
require review).
D.Colo.,2007.
Sanders v. Funk
Not Reported in F.Supp.2d, 2007 WL 1158531
(D.Colo.)
END OF DOCUMENT

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