Kramer v. Grossman et al
Filing
14
MEMORANDUM OPINION. Signed by Judge Ellen L. Hollander on 3/5/14. (hmls, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
IRWIN R. KRAMER,
Plaintiff,
Civil Action No. ELH-13-1745
v.
GLENN M. GROSSMAN, et al.
Defendants.
MEMORANDUM OPINION
Irwin Kramer, plaintiff, a licensed attorney in Maryland, has filed suit against Glenn M.
Grossman, in his capacity as Bar Counsel to the Attorney Grievance Commission of Maryland
(“Commission”), and the Attorney Grievance Commission of Maryland, claiming that he has a
right under the First Amendment to operate a particular website, and seeking a declaration that
any disciplinary action against him for doing so is unlawful.
In
particular,
Kramer
“AttorneyGrievance.com.”
“AttorneyGrievances.com,”
operates
a
website
See Complaint, ECF 1.
with
the
domain
name
He also owns the domain names
“AttorneyGrievanceLaw.com,”
“GrievanceAttorneys.com,”
“GrievanceLawyer.com,” and “GrievanceLawyers.com,” all of which redirect the user to
“AttorneyGrievance.com.” See id. According to plaintiff, he uses the website “to provide
helpful information for attorneys faced with grievances, and to raise awareness of legal services
designed to assist them.” Id. ¶ 9. In this suit, plaintiff alleges that defendants claim that the
domain name “AttorneyGrievance.com” may mislead the public into believing that the website is
connected to the Attorney Grievance Commission of Maryland, and have threatened plaintiff
with disciplinary action if he does not cease using the domain name.
Therefore, plaintiff filed suit against defendants under the Declaratory Judgment Act, 28
U.S.C. §§ 2201-02, seeking a declaratory judgment that defendants violated his rights under the
First Amendment to the United States Constitution to continue to use “AttorneyGrievance.com”
and the several other similar domain names he owns. Plaintiff also seeks a declaration that any
action to punish, sanction, or discipline him for his use of those domain names would be
unconstitutional. Id.
Contemporaneously with his Complaint, plaintiff filed a Motion for Summary Judgment
(“Kramer Motion,” ECF 3), and a supporting memorandum (“Kramer Memo,” ECF 3-1), in
which he claims that “there are no genuine disputes of material fact” and that he is “entitled to a
declaratory judgment as a matter of law.” Defendants did not file an opposition to the Kramer
Motion. Instead, they filed a Motion to Dismiss the Complaint (“Bar Motion,” ECF 9), along
with a supporting memorandum (“Bar Memo,” ECF 9-1). The Bar Memo lodges numerous
procedural challenges to plaintiff’s Complaint, including that plaintiff lacks Article III standing,
that the issue is not ripe for adjudication, that this Court should abstain from deciding the case,
and that the suit is barred by sovereign immunity. Plaintiff filed an opposition to the Bar Motion
(ECF 10), along with a supporting memorandum (“Pl. Opp.,” ECF 10-1). Defendants did not file
a reply.
No hearing is necessary to resolve the motions. See Local Rule 105.6. For the reasons
that follow, I will grant the Bar Motion in part and deny it in part. And, I will deny the Kramer
Motion, without prejudice.
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Factual Summary
Irwin R. Kramer is an attorney, licensed in Maryland since 1987, who works at the
litigation firm of Kramer & Connolly. Complaint ¶ 6. His practice includes the representation of
lawyers who are the subjects of attorney grievance proceedings. Id. To advertise his practice,
plaintiff maintains a website devoted to this practice area, which is accessible at
“AttorneyGrievance.com.” Id. He also is the registered owner of other Internet domain names:
“AttorneyGrievances.com,”
“AttorneyGrievanceLaw.com,”
“GrievanceAttorneys.com,”
“GrievanceLawyer.com,” and “GrievanceLawyers.com.” Id. ¶¶ 6, 9. Since June 2012, plaintiff
has placed advertisements for “AttorneyGrievance.com” in the “Lawyer-to-Lawyer” referral
section of The Daily Record, which is a Maryland-based news publication providing legal and
business information. Id. ¶ 9; see Ex. A to Complaint (ECF 1-1).1
Glenn Grossman has served as Bar Counsel to the Commission since July 2010.
Complaint ¶ 7. Under Maryland law, Bar Counsel has the power, inter alia, to investigate
professional misconduct, to issue reprimands, and to prosecute attorneys for alleged violations of
the Rules of Professional Conduct. See Maryland Rule 16-712(b) (MIKE- Add formal name).
Id. The Commission consists of twelve members appointed by the Maryland Court of Appeals.
Among other things, it appoints Bar Counsel. See Maryland Rule 16-711(h); Complaint ¶ 8.
1
In resolving a Rule 12(b)(6) motion, a court may properly consider documents “attached
to the complaint.” Philips v. Pitt County Memorial Hosp., 572 F.3d 176, 180 (4th Cir. 2009).
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On January 2, 2013, James A. Gaither, Assistant Bar Counsel, sent a letter to Kramer
regarding the use of the “AttorneyGrievance.com” domain name. Complaint ¶ 10. In the letter,
Gaither stated, Ex. F. to Complaint (ECF 1-6):
[Y]our firm’s use of the domain name “AttorneyGrievance.com” raises
additional concerns, which I request that you . . . address. The name appears to be
prima facie misleading in that it may mislead a potential client into believing that
your firm is associated with the Attorney Grievance Commission of Maryland. If
you believe otherwise, please indicate so in your response. Please also describe
how your firm’s use of this domain name does not unjustly increase your website
traffic volume at the expense of the Attorney Grievance Commission.
Kramer responded by a letter dated January 8, 2013. See Ex. C to Complaint (ECF 1-3).
In the letter, Kramer stated: “I do not understand the basis for [the assertion that the domain
name is misleading]. . . . I am not aware of any ethical rule precluding domain names describing
specific practice areas.” Id.
In a letter of January 23, 2013, Gaither responded to Kramer, stating: “Our office remains
firm on its position concerning your use of the domain name AttorneyGrievance.com.
In
response to your letter, the basis for the assertion that using this name may be misleading lies in
Rule 7.1, Rule 7.2, and Rule 7.5 of the Maryland Lawyers’ Rules of Professional Conduct
(‘MLRPC’).” Ex. E to Complaint (ECF 1-5). Kramer further explained: “Per Rule 7.5, a trade
name may be used . . . if it does not imply a connection with a government agency or with a
public
or
charitable
legal
services
organization. . . .”
“Use
of
the
domain
name
‘AttorneyGrievance.com’ implies a connection with the Attorney Grievance Commission of
Maryland.” Id. According to Gaither, “Rule 7.2 requires the disclosure of the identity of
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lawyers advertising their services.” Id. Further, Gaither said: “Again, your domain name
without disclosure of your identity may be misleading, in that “a potential client may
misinterpret your website to be either affiliated with the Attorney Grievance Commission or,
although just briefly, may misinterpret it to be the official AGC website.” Id. The letter
concluded, id.: “[I]t is our position that your use of this domain name violates the MLRPC.”
Plaintiff, who disagreed with Bar Counsel’s position, provided Bar Counsel with a
research memorandum supporting the propriety of his use of the domain name
“AttorneyGrievance.com” for a website “designed to help lawyers faced with attorney
grievances.” See Ex. I to Complaint (ECF 1-9). In the cover letter to the memorandum, plaintiff
stated: “If you continue to insist on the discontinuance of this domain, I shall sooner take the site
down than run the risk of disciplinary action. However, I sincerely hope that, after reviewing the
authorities cited, we may work together to resolve any remaining concerns.” Id.
Mr. Gaither responded with a letter dated February 19, 2013. See Ex. J to Complaint
(ECF 1-10). He stated, id.:
While I do appreciate your effort in putting forth your response, Bar
Counsel maintains its position in this matter. Nevertheless, and in pursuit of
fairness in this matter, without having to proceed in federal court, or through the
disciplinary process . . . I would like to discuss with you an additional option that
may appeal to both sides.
Although a telephone discussion appears to have taken place between Mr. Kramer and
Mr. Gaither, the details of that discussion are not clear. However, on May 21, 2013, Mr. Gaither
advised Mr. Kramer: “Bar Counsel is not inclined to accept your proposed changes. As a result,
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I am constrained to docket this matter unless you make the changes that we discussed in prior
correspondence.” Ex. K to Complaint, ECF 1-11.
Plaintiff continues to use the disputed domain name. And, he initiated this suit to obtain
declaratory relief.
Standard of Review
A motion pursuant to Rule 12(b)(6) constitutes an assertion by a defendant that, even if
the facts alleged by the plaintiff are true, the complaint fails as a matter of law “to state a claim
upon which relief can be granted.” Whether a complaint states a claim for relief is assessed by
reference to the pleading requirements of Fed. R. Civ. P. 8(a)(2). It provides that a complaint
must contain a “short and plain statement of the claim showing that the pleader is entitled to
relief.” The purpose of the rule is to provide the defendant with “fair notice” of the claim and the
“grounds” for entitlement to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–56 n.3
(2007); see Ashcroft v. Iqbal, 556 U.S. 662 (2009).
In reviewing such a motion, a court “‘must accept as true all of the factual allegations
contained in the complaint,’” and must “‘draw all reasonable inferences [from those facts] in
favor of the plaintiff.’” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440
(4th Cir. 2011) (citations omitted); see Kendall v. Balcerzak, 650 F.3d 515, 522 (4th Cir.), cert.
denied, ____ U.S. ____, 132 S. Ct. 402 (2011); Monroe v. City of Charlottesville, 579 F.3d 380,
385–86 (4th Cir. 2009), cert. denied, 559 U.S. 992 (2010). However, a complaint that provides
no more than “labels and conclusions,” or “a formulaic recitation of the elements of a cause of
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action,” is insufficient. Twombly, 550 U.S. at 555. Similarly, the defendant’s motion will be
granted if the “well-pleaded facts do not permit the court to infer more than the mere possibility
of misconduct.” Iqbal, 556 U.S. at 679 (citation omitted). Moreover, the court is not required to
accept legal conclusions drawn from the facts. See Papasan v. Allain, 478 U.S. 265, 286 (1986);
Monroe, 579 F.3d at 385–86.
“A court decides whether [the pleading] standard is met by separating the legal
conclusions from the factual allegations, assuming the truth of only the factual allegations, and
then determining whether those allegations allow the court to reasonably infer” that the plaintiff
is entitled to the legal remedy he or she seeks. A Society Without A Name v. Virginia, 655 F.3d
342, 346 (4th Cir. 2011), cert. denied, ___ U.S. ___, 132 S. Ct. 1960 (2012). “‘Dismissal under
Rule 12(b)(6) is appropriate only where the complaint lacks a cognizable legal theory or
sufficient facts to support a cognizable legal theory.’” Hartmann v. Calif. Dept. of Corr. &
Rehab., 707 F.3d 1114, 1122 (9th Cir. 2013) (citation omitted); accord Commonwealth Prop.
Advocates, LLC v. Mortg. Elec. Reg. Sys., Inc., 680 F.3d 1194, 1201-02 (10th Cir. 2011) (“When
reviewing a 12(b)(6) dismissal, ‘we must determine whether the complaint sufficiently alleges
facts supporting all the elements necessary to establish an entitlement to relief under the legal
theory proposed.’ Dismissal is appropriate if the law simply affords no relief.”) (internal citation
omitted).
A motion asserting failure of the complaint to state a claim typically “does not resolve
contests surrounding the facts, the merits of a claim, or the applicability of defenses,” Edwards v.
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City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999) (internal quotation marks omitted), unless
such a defense can be resolved on the basis of the facts alleged in the complaint. See Goodman
v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007). “This principle only applies, however, if all
facts necessary to the affirmative defense ‘clearly appear[ ] on the face of the complaint,’” or in
other documents that are proper subjects of consideration under Rule 12(b)(6). Id. (quoting
Richmond, Fredericksburg & Potomac R.R. v. Forst, 4 F.3d 244, 250 (4th Cir. 1993)) (emphasis
in Goodman).
Discussion
I. Defendants’ Motion to Dismiss
A. Eleventh Amendment Immunity
Defendants argue that plaintiff’s claims are barred by the Eleventh Amendment to the
United States Constitution. Bar Memo at 14. It provides: “The Judicial power of the United
States shall not be construed to extend to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State, or by Citizens or subjects of any
Foreign State.” The Eleventh Amendment, which preserves the sovereign immunity of the
states, precludes a private individual from suing an unconsenting state or an “arm of the state” or
an instrumentality of state in federal court, absent waiver or a valid Congressional abrogation of
sovereign immunity. See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54–55 (1996) (“For
over a century we have reaffirmed that federal jurisdiction over suits against unconsenting States
was not contemplated by the Constitution when establishing the judicial power of the United
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States.”) (internal quotation marks and citation omitted); Pennhurst State School & Hospital v.
Halderman, 465 U.S. 89, 101–02 (1984) (“It is clear, of course, that in the absence of consent a
suit in which the State or one of its agencies or departments is named as the defendant is
proscribed by the Eleventh Amendment.”). See also Regents of the Univ. of Cal. V. Doe, 519
U.S. 425, 429 (1997); Bland v. Roberts, 730 F.3d 368, 389 (4th Cir. 2013). The preeminent
purpose of state sovereign immunity is to accord states the dignity that is consistent with their
status as sovereign entities. Fed. Mar. Comm’n v. S. Carolina State Ports Auth., 535 U.S. 743,
760 (2002).
However, the doctrine of Ex parte Young, 209 U.S. 123 (1908), creates an exception to
sovereign immunity that is applicable in suits against individual state officers, for declaratory
and injunctive relief, to prevent ongoing violations of federal law.
See generally Verizon
Maryland, Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 645 (2002); Idaho v. Coeur d’Alene
Tribe of Idaho, 521 U.S. 261, 269 (1997); Bland, 730 F.3d at 390; McBurney v. Cuccinelli, 616
F.3d 393, 399 (4th Cir. 2010). “In determining whether the doctrine of Ex parte Young avoids an
Eleventh Amendment bar to suit, a court need only conduct a straightforward inquiry into
whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly
characterized as prospective.” Verizon, 535 U.S. at 645 (internal quotation marks omitted).2
2
Of course, the individual whose conduct is at issue must also qualify as an arm of the
state. Bland, 730 F.3d at 390. And, a State may wiave its sovereign immunity. College Sav.
Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 675 (1999).
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Plaintiff has sued Glenn M. Grossman in his official capacity as Bar Counsel. However,
based on the allegation and an ongoing violation of his rights under the First Amendment,3
plaintiff seeks only prospective, declaratory relief with respect to Grossman. See Complaint.
Therefore, plaintiff’s claim against Mr. Grossman falls within the exception created by Ex parte
Young; it is not barred by sovereign immunity.
However, plaintiff’s suit against the Commission is barred by sovereign immunity.
Defendants contend, and plaintiff does not deny, that the Attorney Grievance Commission is an
arm of the state of Maryland. See Muhammad v. Maryland Court of Appeals, 2008 WL 398246,
at *1 (D. Md. Feb. 8, 2008) (dismissing suit against Attorney Grievance Commission on grounds
of sovereign immunity), aff’d, 310 F. App’x 561 (4th Cir. 2008) (per curiam). And, although
plaintiff seeks only declaratory relief, the Ex parte Young exception does not apply in suits
against the state or a state entity. See, e.g., Alabama v. Pugh, 438 U.S. 781, 781–82 (1978) (per
curiam); see generally Richard H. Fallon, Jr., et al., Hart & Wechsler's The Federal Courts and
the Federal System 892 (6th ed. 2009) (“[T]he doctrine and rationale of Ex parte Young require
plaintiffs to sue state officials, not the state in its own name, in order to avoid the Eleventh
Amendment’s prohibition.”).
Thus, plaintiff’s claim against the Attorney Grievance
3
Several courts have held that internet domain names may constitute protected speech.
See, e.g., Gibson v. Texas Dep't of Ins.--Div. of Workers’ Comp., 700 F.3d 227, 236 (5th Cir.
2012); Taubman Co. v. Webfeats, 319 F.3d 770, 778 (6th Cir. 2003); Name.Space, Inc. v.
Network Solutions, Inc., 202 F.3d 573, 585 (2d Cir. 2000).
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Commission is barred by sovereign immunity. Accordingly, I will grant defendants’ motion to
dismiss the claims against the Attorney Grievance Commission.
B. Standing
Defendants also argue that plaintiff lacks Article III standing to pursue his claims because
he has not suffered an “injury in fact.” Article III of the United States Constitution “gives
federal courts jurisdiction only over cases and controversies, and the doctrine of standing
identifies disputes appropriate for judicial resolution.” Miller v. Brown, 462 F.3d 312, 316 (4th
Cir. 2006) (internal quotation marks and citations omitted); see Arizona Christian Sch. Tuition
Org. v. Winn, 563 U.S. ____, ____, ____ S. Ct. ____, ____ (2011); Elk Grove Unified Sch. Dist.
v. Newdow, 542 U.S. 1, 11 (2004) (Article III standing “enforces the Constitution’s case-orcontroversy requirement.”).
In order to satisfy the Article III standing requirement, a plaintiff must satisfy three
elements, Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (internal quotation marks and
citations omitted):
First, the plaintiff must have suffered an injury in fact—an invasion of a
legally protected interest which is (a) concrete and particularized, and (b) actual
or imminent, not conjectural or hypothetical. Second, there must be a causal
connection between the injury and the conduct complained of—the injury has to
be fairly traceable to the challenged action of the defendant, and not the result of
the independent action of some third party not before the court. Third, it must be
likely, as opposed to merely speculative, that the injury will be redressed by a
favorable decision.
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See also Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81
(2000); Lane v. Holder, ____ F.3d ____, ____ (4th Cir. 2011); Cruse v. Judd, ____ F.3d ____,
____ (4th Cir. 2011); Doe v. Obama, 631 F.3d 157, 160 (4th Cir. 2011).
Defendants contend that plaintiff fails to allege an “injury-in-fact” because he “has not
changed his expressive behavior” and “the State has not acted to curtail it” by instituting
disciplinary proceedings. Bar Memo at 7.
The injury-in-fact requirement is somewhat relaxed in First Amendment cases. See
Secretary of State of Md. v. Joseph H. Munson Co., Inc., 467 U.S. 947, 956 (1984); Cooksey v.
Futrell, 721 F.3d 226, 235 (4th Cir. 2013) (“The leniency of First Amendment standing
manifests itself most commonly in the doctrine’s first element: injury-in-fact.”); Human Life of
Wash. Inc. v. Brumsickle, 624 F.3d 990, 1000 (9th Cir. 2010) (“[W]hen a challenged statute risks
chilling the exercise of First Amendment rights, the Supreme Court has dispensed with rigid
standing requirements.” (internal quotation marks and citation omitted)).
When a plaintiff alleges that state action has chilled his speech, he need not “first expose
himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters
the exercise of his constitutional rights.” Steffel v. Thompson, 415 U.S. 452, 459, (1974); see
Berry v. Schmitt, 688 F.3d 290, 296 (6th Cir. 2012). Rather, he may satisfy the injury-in-fact
requirement by showing: (1) “an intention to engage in a course of conduct arguably affected
with a constitutional interest, but proscribed by a statute” and (2) “a credible threat of
prosecution thereunder.” Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298
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(1979); accord Cooksey, 721 F.3d at 237.4 The mere threat of prosecution suffices because such
a threat “tends to chill the exercise of First Amendment rights” and leads to self-censorship,
which constitutes an injury in and of itself. N. Carolina Right to Life, Inc. v. Bartlett, 168 F.3d
705, 710 (4th Cir. 1999).
The recent case of Berry v. Schmitt, 688 F.3d 290, is instructive. John Berry, an attorney,
was issued a written warning by the Kentucky Bar Association for criticizing a quasi-judicial
state legislative ethics commission. Id. at 294. Berry raised a First Amendment challenge to the
Kentucky rule of professional conduct that he was accused of violating, which prohibited a
lawyer from making “a statement that the lawyer knows to be false or with reckless disregard as
to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or
public legal officer.” Id. at 295. The defendant argued that Berry lacked standing to pursue his
challenge because he failed to allege an injury-in-fact. The Sixth Circuit rejected defendant’s
argument, holding that Berry had shown a “credible threat of enforcement” because the warning
letter he had received “implied a threat of future enforcement that elevated the injury from
subjective chill to actual injury.” Id. at 297.
Here, Bar Counsel has repeatedly asserted that plaintiff’s use of the domain
“AttorneyGrievance.com” violates Rule 7.1, Rule 7.2, and Rule 7.5 of the Maryland Lawyers’
Rules of Professional Conduct, and has indicated his intention to pursue disciplinary action
4
Although several cases refer to “prosecution” in the criminal sense, the threatened
governmental action need not be criminal prosecution in order for plaintiff to satisfy Article III’s
injury-in-fact requirement. Cooksey, 721 F.3d at 238 n.5; see Berry v. Schmitt, 688 F.3d 290,
296 (6th Cir. 2012) (holding that threat of disciplinary action by Kentucky Bar Association
satisfied injury-in-fact requirement).
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against plaintiff. See, e.g., ECF 1-11 (“I am constrained to docket this matter unless you make
the changes that we discussed in prior correspondence.”).
In the context of the First
Amendment, this “credible threat of prosecution” satisfies Article III’s “injury-in-fact”
requirement. Accordingly, defendants’ standing argument must be rejected.
C. Ripeness
Defendants also contend that plaintiff’s claim is not “ripe” for adjudication and therefore
must be dismissed. Bar Memo at 7–9. Ripeness “‘concerns the appropriate timing of judicial
intervention.’” Cooksey, 721 F.3d at 240 (quoting Va. Soc’y for Human Life, Inc. v. FEC, 263
F.3d 379, 389 (4th Cir. 2001)). The ripeness doctrine, which overlaps with standing, is “drawn
both from Article III limitations on judicial power and from prudential reasons for refusing to
exercise jurisdiction.” Nat’l Park Hospitality Ass’n v. Dep’t of Interior, 538 U.S. 803, 808
(2003) (internal quotations omitted). Generally speaking, “a case is fit for judicial decision when
the issues are purely legal and when the action in controversy is final and not dependent on
future uncertainties.” Doe v. Virginia Dep't of State Police, 713 F.3d 745, 758 (4th Cir. 2013)
(internal quotation marks omitted). On the other hand, a claim “should be dismissed as unripe if
the plaintiff has not yet suffered injury and any future impact remains wholly speculative.” Id.
(internal quotation marks omitted).
“Much like standing, ripeness requirements are also relaxed in First Amendment cases.”
Cooksey, 721 F.3d at 240 (citing New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495,
1500 (10th Cir. 1995) (“The primary reasons for relaxing the ripeness analysis in th[e] [First
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Amendment] context is the chilling effect that potentially unconstitutional burdens on free
speech may occasion.”)). Indeed, “First Amendment rights . . . are particularly apt to be found
ripe for immediate protection, because of the fear of irretrievable loss.” 13B Wright, Miller &
Cooper, Federal Practice and Procedure § 3532.3 at 159 (3d ed.).
Accordingly, a First
Amendment claim may be ripe for review even before the government has taken enforcement
action.
Although defendants maintain that plaintiff’s claim is not ripe for adjudication and cite
relevant law on the subject, they do not actually apply the ripeness doctrine to the facts of this
case. Instead, they merely assert that “plaintiff cannot meet his burden to show an actual case or
controversy because he cannot show that the legal issue . . . is fit for judicial resolution by this
Court.” Bar Memo at 9. In any event, the only conceivable ripeness issue is the same as that
raised in the context of standing—that the Attorney Grievance Commission has not yet imposed
discipline on plaintiff.
However, as discussed, a First Amendment claim may ripen before disciplinary
proceedings take place, because a credible threat of disciplinary proceedings may have a chilling
effect on speech. See Cooksey, 721 F.3d at 240 (“Just as they argued Cooksey has not been
injured for standing purposes, they also contend Cooksey’s claims are not ripe because the State
Board has taken no action against Cooksey . . . . We disagree.”). Bar Counsel has unequivocally
expressed his position that plaintiff’s use of the domain “AttorneyGrievance.com” violates the
Maryland Rules of Professional Conduct, and he has made clear that he intends to seek
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disciplinary action against plaintiff if he does not cease using the domain name. See ECF 1-11.
Such action could jeopardize Kramer’s ability to practice law. Such threats are “likely to deter a
person of ordinary firmness from the exercise of First Amendment rights,” Benham, 635 F.3d at
135, and plaintiff has clearly alleged that they have so deterred him. See Compl. ¶¶ 26, 33, 40;
see also Letter from Plaintiff to Assistant Bar Counsel, ECF 1-9 (“If you continue to insist on the
discontinuance of this domain, I shall sooner take the site down than run the risk of disciplinary
action.”).5 Accordingly, (see page 17), the legal issue is squarely presented, and the issue of
whether plaintiff has a First Amendment right to use the domain “AttorneyGrievance.com” is
ripe for review. Cf. Cooksey, 721 at 241 (“No further action from the Board is needed: it has
already . . . manifested its views that the Act applies to Cooksey’s website, and that he was
required to change it . . . or face penalties.”).
However, plaintiff’s requests for declaratory relief with regard to the several other
domain names he owns are not ripe for adjudication. Although the other domain names are
similar to “AttorneyGrievance.com”, plaintiff has not alleged that defendants threatened
disciplinary action with regard to them. Therefore, any finding that a “case or controversy”
exists as to the other domain names would be based on nothing more than the Court’s
speculation that defendants would threaten disciplinary action over their continued use.
5
Although plaintiff continues to use the challenged domain name, he has done so only
with the consent of defendants, who agreed to “stay the investigation pending a decision” in this
case. ECF 10-3.
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Accordingly, plaintiff’s requests for relief with respect to the related domain names are
not ripe for adjudication. As a result, defendants’ motion to dismiss will be granted as to those
requests, without prejudice to their renewal when they are ripe for adjudication.
D. Professional Speech Doctrine
Defendants assert: “Where professional speech is at issue, the government may
constitutionally regulate the speech within the context of the State’s regulation of a profession.”
Bar Memo at 9. The “professional speech doctrine” applies when a speaker “is providing
personalized advice in a private setting to a paying client . . . .” Moore-King v. County of
Chesterfield, 708 F.3d 560, 569 (4th Cir. 2013). It is pursuant to this doctrine that a state may,
for example, prohibit the unlicensed practice of medicine. See id. (“The power of government to
regulate the professions is not lost whenever the practice of a profession entails speech.”
(internal quotation marks and alterations omitted)).
The professional speech doctrine has no application to the present case. Although it
appears from the materials attached to the Complaint that plaintiff and defendants disagree about
several other issues, all that plaintiff seeks in this Court is a declaration regarding his use of a
domain name. Plaintiff does not seek a declaration regarding the content on his website or
advice he has given or seeks to give to paying clients. In this respect, the briefing by both sides
strays beyond the relevant subject matter: Defendants claim that plaintiff’s advertisements and
“website materials” support a finding that this case involves “professional speech,” Bar Memo at
10, and plaintiff responds that the information on the website “is subject to full First Amendment
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Protection.” Kramer Memo at 16. But, this case is exceedingly narrow—it relates only to the
use of the domain name itself, not the content of the website.
Regardless of how the content of the website is best characterized, plaintiff’s use of the
domain name “AttorneyGrievance.com” does not constitute “personalized advice in a private
setting.” Therefore, the professional speech doctrine is inapplicable to this declaratory judgment
action.
E. Rooker-Feldman Abstention
Defendants fare no better with their argument that the Rooker-Feldman doctrine warrants
abstention in this case. The Rooker–Feldman doctrine is a jurisdictional rule that prohibits a
federal district court from hearing “cases brought by state-court losers complaining of injuries
caused by state-court judgments rendered before the district court proceedings commenced and
inviting district court review and rejection of those judgments.” Exxon Mobil Corp. v. Saudi
Basic Indus. Corp., 544 U.S. 280, 284 (2005).6 In other words, the doctrine forbids claims that
seek redress for an injury caused by a state-court decision, because such a claim essentially asks
“‘the federal district court to conduct an appellate review of the state-court decision.’” Adkins v.
Rumsfeld, 464 F.3d 456, 464 (4th Cir. 2006) (quoting Davani v. Va. Dep't of Transp., 434 F.3d
712, 719 (4th Cir. 2006)).
The doctrine derives from 28 U.S.C. § 1257, a federal statute that vests the United States
Supreme Court—and only the United States Supreme Court—with jurisdiction to hear appeals
6
The name of the Rooker–Feldman doctrine derives from the two leading Supreme Court
cases in which it has been articulated and applied: D.C. Court of Appeals v. Feldman, 460 U.S.
462 (1983) and Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923).
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from state court decisions in cases raising questions of federal law. See Adkins, 464 F.3d at 463–
64. The Rooker–Feldman doctrine precludes “lower federal courts . . . from exercising appellate
jurisdiction over final state-court judgments.” Lance v. Dennis, 546 U.S. 459, 463 (2006).
Although defendants are correct that “the Rooker-Feldman doctrine regularly has been
applied to bar claims brought in federal court . . . that seek to attack the decisions of state
courts . . . disciplining or disbarring an attorney,” Bar Memo at 12, the issues in the present case
have not been the subject of any prior state court adjudication. As discussed, defendants have
threatened plaintiff with disciplinary proceedings, but have not instituted such proceedings
within the Attorney Grievance Commission or in the state court system. Indeed, defendants’
standing and ripeness arguments, discussed supra, are premised on the fact that formal
proceedings have not yet commenced. In short, there is no basis for applying the RookerFeldman doctrine to this case.
II. Plaintiff’s Motion for Summary Judgment
The Kramer Motion, which was filed with plaintiff’s Complaint, seeks summary
judgment on plaintiff’s claim that the First Amendment protects his right to use the domain
“AttorneyGrievance.com” and prohibits defendants from taking any disciplinary action against
him for his continued use of the domain name. I will deny the Kramer Motion as premature.
As noted, defendants did not file a response in opposition to the Kramer Motion, instead
filing a motion to dismiss the Complaint. Although it perhaps was unwise for defendants not to
respond in any way to the Kramer Motion, it would also have been understandable if they simply
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assumed that the Court would address the threshold issues presented by their motion to dismiss
before requiring full briefing on the Kramer Motion.
Moreover, I believe that further factual development would be beneficial. The key
question raised by the Kramer Motion is whether plaintiff’s use of the domain name
“AttorneyGrievance.com” is misleading or deceptive. See Cent. Hudson Gas & Elec. Corp. v.
Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 561 (1980). In their previous correspondence with
plaintiff, defendants suggested that the domain name might mislead the public into believing that
the website is affiliated with the Attorney Grievance Commission. See, e.g., ECF 1-6. An
inquiry into whether the domain name is misleading would be helped by the submission of
evidence showing that members of the public have (or have not) been misled. Cf. Syndicated
Publications, Inc. v. Montgomery Cnty., Md., 921 F. Supp. 1442, 1451 (D. Md. 1996) (finding
that solicitations were misleading because, inter alia, recipients had filed complaints with the
local office of consumer affairs expressing their confusion).
Accordingly, I will deny the
Kramer Motion, without prejudice to its renewal after the parties conduct discovery.
CONCLUSION
For the foregoing reasons, the Bar Motion will be granted, in part and denied, in part.
The Kramer Motion will be denied, without prejudice. A separate Order follows, consistent with
this Memorandum Opinion.
Date: March 5, 2014
/s/
Ellen Lipton Hollander
United States District Judge
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