Livingston v. North Carolina State Bar et al
Filing
40
ORDER: the court GRANTS defendants' motions to dismiss [D.E. 8, 20, 26], DENIES Livingston's motion for leave to file an amended complaint [D.E. 35], and DISMISSES without prejudice the federal claims. The court DECLINES to exercise supplemental jurisdiction over Livingston's state law claims and DISMISSES those claims without prejudice. The clerk shall close the case. Signed by District Judge James C. Dever III on 2/4/2019. (Jenkins, C.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No. 7:18-CV-5-D
CHRISTOPHER W. LIVINGSTON,
Plaintiff,
v.
)
)
)
)
)
ORDER
)
NORTH CAROLINA STATE BAR, et al., )
)
Defendants.)
On January 9, 2018, Christopher W. Livingston ("Livingston" or "plaintiff') filed a
complaint against .the North Carolina State Bar ("NCSB") and the 13th Judicial District Bar
("District Bar") alleging that annual District Bar dues, as authorized by North Carolina General
Statute§ 84-18.1, are unconstitutional [D.E. 1]. The NCSB is an agency of the State of North
Carolina. See N.C. Gen. Stat.§ 84-15. TheDistrictBarisasubdivisionoftheNCSB. Seeid. § 8418.1. On April12, 2018, Livingston filed an amended complaint against NCSB, Lee Wilson Bettis
Jr. ("Bettis"), Leanor Bailey Hodge ("Hodge"), and John Silverstein ("Silverstein") (collectively,
"defendants") [D.E. 6]. 1 Bettis is a member of the NCSB and was a witness in a disciplinary
proceeding involving Livingston. Silverstein is a member of the NCSB and served as NCSB
councilor and chair of the Grievance Committee in April20 15 in a state disciplinary action against
Livingston.
Hodge is deputy counsel with the NCSB's Office of Counsel and prosecuted
disciplinary actions against Livingston. In his amended complaint, Livingston also alleged selective
1
Livingston did not include District Bar in the caption ofhis amended complaint, voluntarily
dismissing the District Bar as a defend~t. See [D.E. 6].
prosecution due to defendants' failure to pursue attorney discipline proceedings against other
attorneys. Id.
Livingston seeks relief under 42 U.S.C. § 1983 and the North Carolina Constitution. Id. On
Apri126, 2018, NCSB and District Bar moved to dismiss Livingston's amended complaint for lack
of subject-matter jurisdiction and for failure to state a claim upon which relief can be granted [D.E.
. 8] and filed a memorandum in support [D.E. 9]. On June 15, 2018, Livingston responde4 in
opposition [D.E. 15]. On July 30,2018, Bettis moved to dismiss Livingston's amended complaint
for lack of subject-matter jurisdiction and for failure to state a claim [D.E. 20] and filed a
memorandum in support [D.E. 21]. On August 15, 2018, Hodge and Silverstein moved to dismiss
Livingston's amended complaint for lack of subject-matter jurisdiction and failure to state a claim
[D.E. 26] and filed a memorandum in support [D.E. 27]. On September 9, 2018, Livingston
responded in opposition to Bettis's motion [D.E. 32] and to Hodge's and Silverstein's motion [D.E.
33].
On November 28, 2018, Livingston moved for leave to file a second amended complaint
[D.E. 35] and filed a memorandum in support [D.E. 36]. On December 19, 2018, defendants
responded in opposition [D.E. 37, 38]. On January 7, 2019, Livingston replied [D.E. 39]. As
explained below, the court grants defendants' motions to dismiss and denies as futile Livingston's
motion to amend.
I.
Livingston resides in Bladen County, North Carolina. See [D.E. 6]
~
5; [D.E. 1] ~ 18. In
March2004, Livingston, who was then a member ofthe North Carolina State Bar, began to represent
I
clients against Capital Acquisitions and Management Company ("Cameo"), a debt collector based
in Rockford, Dlinois. See [D.E. 6] ~ 43. On March 12,2004, Livingston filed suit against Cameo
2
and its counsel in Wake County District Court in North Carolina. See id. , 50. Cameo removed the
action to the United States District Court for the Eastern District ofNorth Carolina. See id. , 52.2
Livingston applied for admission to the North Carolina Eastern District Bar but failed to ''take the
oath of office before a U.S. Magistrate Judge in open court before appearing in court." Id. ,, 53-55.
On September 8, 2004, Livingston appeared before the Honorable Terrence W. Boyle; who noted
that Livingston had not yet been admitted to appear in the Eastern District ofNorth Carolina. See
id. ,, 57-58. Livingston acknowledged that he had yet do so. See id. , 58. Judge Boyle also
questioned Livingston's motive in bringing suit against Cameo. See id. ,, 59-61.
After the hearing, Livingston moved to disqualify Judge Boyle. See id., 63. Livingston
describes the tone and statements within the motion as ''unprofessional and extremely regrettable."
ld., 64. In December 2004, NCSB commenced a grievance investigation against Livingston,
alleging that he had unauthorizedly practiced law and noting that Livingston's "motion to disqualify
Judge Boyle was cause for professional discipline." ld. , 70. Livingston alleges that NCSB initiated
the disciplinary proceeding in retaliation for Livingston "[holding] debt collectors accountable for
violating the law." Id., 72. Livingston also alleges that, in August 2006, the Disciplinary Hearing
Commission ("DHC") heard oral arguments in Livingston's disciplinary proceeding and indicated
I
that Livingston ought to prevail. See id. ,, 90-91. In October 2007, DHC scheduled another
hearing concerning Livingston's disciplinary proceeding. See id., 94. On January 3, 2008, DHC
entered a final order ofdiscipline that admonished Livingston for Livingston's unauthorized practice
2
Around this time, Jesse L. Riddle e'Riddle"), a lawyer for Cameo, filed suit against
Livingston and his clients in the United States District Court for the District of Utah. See [D.E. 6]
~56, 67; N.C. State Bar v. Livingsto!l, 06 DHC 11 (Disciplinary Hr'g Comm'n Dec. 31, 2007),
https://www.ncbar.gov/handlers/DisciplinaryOrderHandler.ashx?url=\06DHCll.pdf. Livingston
prepared documents for his clients to file in Utah, even though Livingston was not admitted to
practice law in the District of Utah. See [D.E. 6], 70.
3
of law in both the Eastern District of North Carolina and the District' of Utah. See id.
~
102;
Livingston, 6 DHC 11, at 5. Livingston then sued NCSB for malicious administrative prosecution
and selective prosecution. Superior Court Judge Donald Stephens dismissed the complaint for
failure to state a claim. [D.E. 6]
~~
105-06; cf. Livingston v. Bakewell, 232 N.C. App. 337, 757
S.E.2d 525, 2014 WL 457905, at *1-2 (2014) (per curiam) (unpublished table decision). On
February 4, 2014, the North Carolina Court ofAppeals affirmed. See Livingsto!l,20 14 WL 457905,
at *6.
In February 2008, Philip Manger ("Manger") contacted Livingston about representing
consumers in debt collection matters. See [D.E. 6] ~ 247. Manger worked for the Credit Collections
Defense Network ("CCDN''). See id. ~ 249. Livingston accepted clients from CCDN and served
as an "Associate Attorney" even after Livingston learned that CCDN engaged in the unauthorized
practice oflaw. See id. ~~ 251, 254-56; N.C. State Bar v. Livingsto!l, 809 S.E.2d 183, 186 (N.C.
Ct. App. 2017),disc. review denied, 812 S.E.2d853 (N.C. 2018). Eventually,Livingstonterminated
his agreement with CCDN, and he began to represent clients in matters against CCDN. See [D.E.
6] ~~ 257--64. Bettis represented CCDN in some of the matters. See id. ~ 277. Livingston alleges
that Bettis violated numerous rules of professional responsibility while representing CCDN. See,
e.g., id. ~~ 278-90, 300-01, 315, 348. Over the course of several years, Livingston filed actions on
behalf of multiple clients against CCDN, and Livingston and Bettis had repeated negative
encounters. See,~' id. ~~ 274-451.
On April 10, 2015, NCSB filed a complaint against Livingston based on Livingston's
conduct during the CCDN litigation. See id.
~
108. Following a four-day trial, DHC found that
Livingston had violated numerous rules of professional conduct and suspended his license for five
years. See id. ~ 109; N.C. State Bar v. Livingston, 15 DHC 15 (Disciplinary Hr'g Comm'n July 8,
4
20 16), https://www.ncbar.gov/handlers/DisciplinaryOrderHandler.ashx?url=\Livingston,%20Ch
ristopher'l/o200rder0/o20of1l/o20Disc%20 15DHC 15.pdf. On December 19, 2017, the North Carolina
Court of Appeals affirmed Livingston's suspension. See Livingsto!l, 809 S.E.2d at 200.
Livingston contends that NCSB, Hodge (Deputy Counsel for NCSB), and Silverstein (Chair
ofNCSB's Grievance Committee) "instituted and maintained [the disciplinary] action primarily in
retaliation for [Livingston's] success" in the prior disciplinary proceeding and for Livingston's
''truthful criticisms ofNCSB and Judge Boyle." [D.E. 6]
~
113. Livingston maintains that NCSB
would have pursued disciplinarY action against Bettis and other attorneys if not for NCSB's
retaliatory motive. Id.
On January 9, 2018, Livingston filed a complaint against NCSB and the District Bar alleging
that mandatory bar dues, as authorized by N.C. Gen. Stat. § 84-18.1, are unconstitutional both
facially and as applied to Livingston. See [D.E. 1] 5. OnApril12, 2018, Livingston amended his
complaint, adding Hodge~ Silverstein, and Bettis as defendants and removing the District Bar as a
defendant [D.E. 6]. Livingston's amended complaint includes four claims: (1) a section 1983 claim
against defendants for illegal taxation in violation of the Fifth and Fourteenth Amendments, (2) a
section 1983 claim against defendants for selective prosecution in violation of the First and
Fourteenth Amendments, (3) an illegal taxation claim in violation of the North Carolina
Constitution, and (4) and a selective prosecution claim in violation of the North Carolina
Constitution. See id.
~~
453-56. Livingston seeks monetary damages, injunctive relief, and a
declaration that N.C. Gen. Stat. § 84-18.1 is unconstitutional. Id.
On May 9, 2018, the Supreme Court of North Carolina denied discretionary review of
Livingston's suspension. See N.C. State Bar v. Livingsto!l, 812 S.E.2d 853, 853-54 (N.C. 2018).
5
n.
A.
Defendants move to dismiss Livingston's selective prosecution claim. See Fed. R. Civ. P.
12(b)(l). A motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure tests
subject-matter jurisdiction, which is the court's "statutory or constitutional power to adjudicate the
case." Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 89 (1998) (emphasis omitted); see
Holloway v. Pagan River Dockside Seafood. Inc., 669 F.3d 448, 453 (4th Cir. 2012); Constantine .
v. Rectors& Visitors of George Mason Univ., 411 F.3d474, 479-80 (4thCir. 2005). A federal court
"must determine that it has subject-matter jurisdiction over the case before it can pass on the merits
of that case." Constantine, 411 F.3d at 479-80. As the party invoking federal jurisdiction,
Livingston bears the burden of establishing that this court has subject-matter jurisdiction in this
action.
See,~'
Steel Co., 523 U.S. at 104; Evans v. B.F. Perkins Co., 166 F.3d 642,647 (4th Cir.
1999); Richmond. Fredericksburg & Potomac R.R. v. United States, 945 F.2d 765, 768 (4th Cir.
1991). In considering a motion to dismiss for lack of subject-matter jurisdiction, the court may
consider evidence outside the pleadings without converting the motion into one for summary
judgment. See, e.g., Evans, 166 F .3d at 647. A court should grant a motion to dismiss pursuant to
Rule 12(b)(1) "only if the material jurisdictional facts are not in dispute and the moving party is
entitled to judgment as a matter oflaw." ld. (quotation omitted).
Generally, federal district courts have "no authority to review final judgments of a state court
in judicial proceedings." D.C. Court of Aweals v. Feldman, 460 U.S. 462, 482 (1983); see Rooker
v. Fid. Tr. Co., 263 U.S. 413, 415-16 (1923). The Rooker-Feldman doctrine prohibits a "party
losing in state court . . . from seeking what in substance would be appellate review. of the state
(
judgment in a United States district court, based on the losing party's claim that the state judgment
6
itself violates the loser's federal rights." Johnson v. De Grandy, 512 U.S. 997, 1005-06 (1994); see
Exxon Mobil Cor,p. v. Saudi Basic Indus. Cor,p., 544 U.S. 280, 284 (2005); Feldman, 460 U.S. at
476; Thana v. Bd. of License Comm'rs for Charles Cty., 827 F.3d 314, 318-20 (4thCir. 2016);
Washington v. Wilmore, 407 F.3d 274, 279-80 (4th Cir. 2005). The Rooker-Feldman doctrine
reinforces the important principle that review of state court decisions must be made to the state
appellate courts, and eventually to the Supreme Court, not by federal district courts or courts of
appeal. See Johnso!l, 512 U.S. at 1005-06. It "preserves federalism by ensuring respect for the
finality of state court judgments." Washingto!l, 407 F.3d at 279. The doctrine encompasses "not
only review of adjudications of the state's highest court, but also the decisions of its lower courts."
Brown & Root. Inc. v. Breckenridge, 211 F.3d 194, 199 (4th Cir. 2000) (quotation omitted).
Rooker-Feldman is a "narrow doctrine." Lance v. Dennis, 546 U.S. 459, 464 (2006); Than!!,
827 F .3d at 318-20. It applies only to "cases brought by state-court losers complaining of injuries
caused by state-court judgments rendered
befor~
the district court proceedings commenced and
inviting district court review and rejection of those judgments." Exxon Mobil Cor,p., 544 U.S. at
284; see Skinner v. Switzer, 562 U.S. 521, 531-33 (2011);
Than~
827 F.3d at 318-20. For the
doctrine to apply, the party seeking relief in federal court must be asking the federal court to "reverse
or modify the state court decree." Adkins v. Rumsfeld, 464 F.3d456, 464 (4th Cir. 2006) (quotation
omitted); see Than~ 827 F .3d at 318-20. Accordingly, the court "examine[s] whether the state-court
loser who files suit in federal district court seeks redress for an injury caused by the state-court
decision itself.
If [the
state-~ourt
loser] is not
ch~lenging
the state-court decision, the
Rooker-Feldman doctrine does not apply." Davani v. Va. Dep't ofTransp., 434 F.3d 712,718 (4th
Cir. 2006) (footnote omitted); see Thana, 827 F .3d at 318-20. "The Rooker-F eldman doctrine bars
consideration not only of issues actually presented to and decided by a state court, but also of
7
constitutional claims that are inextricably intertwined with questions ruled upon by a state court, as
when success on the federal claim depends upon a determination that the state court wrongly decided
the issues before it." Plyler v. Moore, 129 F.3d 728, 731 (4th Cir. 1997) (quotations omitted);
see Jordahl v. Democratic PartY ofVa., 122 F.3d 192, 199 (4th Cir. 1997). In addition, a party "may
not escape the jurisdictional bar of Rooker-Feldman by merely refashioning its attack on the state
court judgments as a [section] 1983 claim." Jordahl, 122 F.3d at 202.
Livingston's selective prosecution claim invites the court to review and reject the North
Carolina state disciplinary proceedings. State disciplinary proceedings are judicial proceedings. See
I
Feldmm!, 460 U.S. at 482 n.15; Middlesex Cty. Ethics Comm. v. Garden State Bar Ass'n, 457 U.S.
423, 433-34 (1982); Konan v. Sengel, 239 F. App'x 780, 781 (4th Cir. 2007) (per curiam)
(unpublished); Motleyv. Va. State Bar, 403 F. Supp. 2d468, 471-74 (E.D. Va. 2005), aff'd, 178 F.
App'x 191 (4th Cir. 2006) (per curiam) (unpublished). Moreover, the court does not have subjectmatter jurisdiction merely because Livingston raised his selective prosecution claim under section
1983. See Konml, 239 F. App'x at 781; Jordahl, 122 F.3d at 202; Czura v. Supreme Court of S.C.,
813 F.2d 644, 646 (4th Cir. 1987); Scotchel'v. Karlin, No. 2:17-CV-3353, 2018 WL 1512378, at
*2-4 (S.D. W.Va. Mar. 26, 2018) (unpublished), appeal docketed sub nomen, Scotchel v. Rhodes,
No. 18-2352 (4th Cir. Nov. 13, 2018); Motley, 403 F. Supp. 2d at 471-74; Allstate lns .. Co. v. W.
Va. State Bar, 998 F. Supp. 690, 691-93 (S.D. W.Va. 1998). Livingston's selective prosecution
-,,
\ claim is inextricably intertwined with the issues raised in the state court proceedings at trial and on
appeal, and Livingston had to raise this challenge in the state disciplinary proceedings. See Feldmm!,
460 U.S. at 482 n.16; KoM!l, 239 F. App'x at 781; Czur~ 813 F ~2d at 646; Motley, 403 F. Supp. 2d
at 471-74; cf. United States v. Armstrong, 517 U.S. 456,464--68 (1996); Wayte v. United States,
470 U.S. 598, 607-10 (1985); United States v. Venable, 666 F.3d 893, 900--04 (4th Cir. 2012);
8
Fieger v. Thomas, 74 F.3d 740, 746-50 (6th Cir. 1996); Majebe v. N.C. Bd. ofMed. Exam'rs; 106
N.C. App. 253, 260, 416 S.E.2d 404, 407-08 (1992). Accordingly, the court grants defendants'
motions to dismiss Livingston's section 1983 selective prosecution claim.3
B.
Defendants move to dismiss Livingston's illegal taxation claim concerning the annual
District Bar dues. See Fed. R. Civ. P. 12(b)(1 ). Under the Tax Injunction Act, a district court lacks
jurisdiction over any action that would "enjoin, suspend or restrain the assessment, levy or collection
of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of
such State." 28 U.S.C. § 1341; see Gwozdz v. HealthPort Techs .. LLC, 846 F.3d 738,742 (4th Cir. ·
20 17). Congress designed the Tax Injunction Act "expressly to restrict the jurisdiction ofthe district
courts of the United States over suits relating to the collection of State taxes." Hibbs v. Winn, 542
U.S. 88, 104 (2004) (quotation omitted). Whether the court has jurisdiction over Livingston's
challenge to the annual District Bar dues imposed under N.C. Gen. Stat. § 84-18.1 depends on
whether the annual District Bar dues constitute a ''tax."
Notably, this court held that a $50 surcharge that the North Carolina General Assembly
assessed against every active member of the NCSB to help pay for public financing of judicial
candidates is a ''tax" under the Tax Injunction Act. See Jackson v. Leake, 476 F. Supp. 2d 515,
521-22 (E.D.N.C. 2006),affd, 524F.3d427 (4thCir.2008); cf. N.C. Gen. Stat.§ 84-34. Moreover,
the nomenclature describing the annual District Bar dues as an "annual membership fee," N.C. Gen.
Stat. § 84-18.1(b), does not control whether the annual District Bar dues constitute a tax or a fee
3
The court does not address the issue of abstention. See Younger v. Harris, 401 U.S. 37,
43-44 (1971 ). The court also does not address the issue of qualified immunity. See, ~' Kisela v.
Hughes, 138 S. Ct. 1148, 1152-54 (2018) (per curiam); Dist. ofCo1umbia v. Wesby, 138 S. Ct. 577,
589-93 (2018).
9
under the Tax Injunction Act. See GenOnMid-Atl.. LLC v. Montgomery Cty., 650 F.3d 1021, 1023
(4th Cir. 2011); Valero Terrestrial Corp. v. Caffrey, 205 F.3d 130, 134 (4th Cir. 2000). Having
examined the entity that imposes the annual District Bar dues, the population that is subject to the
annual District Bar dues, and the purposes served by the use of the monies obtained by the annual
District Bar dues, the court holds that the annual District Bar dues authorized by N.C. Gen. Stat. §
84-18.1 constitute a ''tax" under the Tax Injunction Act. See Jackso!!, 476 F. Supp. 2d at 521-22;
see also Valero Terrestrial Corp., 205 F.3d at 134-36; cf. N.C. Gen. Stat.§§ 84-15-84-38. Thus,
the court lacks subject-matter jurisdiction to review Livingston's section 1983 claim attacking the
annual District Bar dues.
Alternatively, even if the Tax Injunction Act does not apply to Livingston's challenge to the
annual District Bar dues, the court lacks jurisdiction to review Livingston's claim based on the
principle of comity, which reaches more broadly than the Tax Injunction Act. See Levin v.
Commerce Energy. Inc., 560 U.S. 413, 424 (2010); Fair Assessment in Real Estate Ass'n. Inc. v.
McNary, 454 U.S. 100, 116 (1981) ("[T]axpayers are barred by the principle of comity from
asserting [section] 1983 actions against the validio/ of state tax systems in federal courts."); Gwozdz,
846 F.3d at 743. Accordingly, the court grants defendants' motions to dismiss Livingston's section
1983 challenge to the annual District Bar dues.
c.
As for Livingston's state law claims, a district court "may decline to exercise supplemental
jurisdiction ... if the district court has dismissed all claims over which it has original jurisdiction."
28 U.S.C. § 1367(c)(3). The court has dismissed Livingston's claims over which the court has
original jurisdiction. To the extent that Livingston raises state law claims, including claims under
the North Carolina Constitution, the court declines to exercise supplemental jurisdiction over such
10
claims. Id.; see Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988); United Mine
Workers of Am. v. Gibbs, 383 U.S. 715,726 (1966); ESAB Grp.. Inc. v. Zurich Ins. PLC, 685 F.3d
376,394 (4th Cir. 2012); Shanaghan v. Cahill, 58 F.3d 106, 110 (4th Cir. 1995). Accordingly, the
court dismisses without prejudice Livingston's state law claims.
m.
As for Livingston's motion for leave to file a second amended complaint, a plaintiff may
amend his complaint once as a matter of course within 21 days after service or, if it is a pleading
requiring a response, within 21 days after service of the response or service of a motion under Rule
12(b), (e), or (t). See Fed. R. Civ. P. 15(a)(l). Otherwise, a party may amend his pleading only with
the written consent of the opposing party or by leave of court. See Fed. R. Civ. P. 15(a)(2).
Although the court "should freely give leave when justice so requires," id., the court need not grant
a plaintiff leave to amend when ''the amendment would be prejudicial to the opposing party, there
has been bad faith on the part of the [plaintiff], or the amendment would have been futile.", Laber
v. Harvey, 438 F.3d404, 426-27 (4thCir. 2006) (en bane) (quotation omitted); seeFoman v. Davis,
371 U.S. 178, 182 (1962); Matrix Capital Mgmt. Fund. LP v. BearingPoint. Inc., 576 F.3d 172, 193
(4th Cir. 2009); Edwards v. Ciey of Goldsboro, 178 F.3d231, 242 (4th Cir. 1999); Sarvis v. United
States, No. 7:11-CR-83-D, 2018 WL4855206,at *2(E.D.N.C. Oct. 5, 2018)(unpublished); Johnson
v.Allen,No. 7:18-CV-14-D,2018 WL4289456, at *7 (E.D.N.C. Sept. 7,2018)(unpublished). "An
amendment is futile if the amended complaitit would fail to state a claim upon which relief can be
granted." Johnson, 2018 WL 4289456, at *7; see Van Leer v. Deutsche Bank Sec.. Inc., 479 F.
App'x 475, 479 (4th Cir. 2012) (unpublished); United States ex rel. Wilson v. Kellogg Brown &
Root. Inc., 525 F.3d 370, 376 (4th Cir. 2008).
\
11
Livingston seeks leave to amend his complaint primarily to reinstate the District Bar as a
defendant, to add clarifying comments to his allegations,4 to allege that Bettis testified falsely against
Livingston in the 2015 disciplinary hearing, and to discuss Livingston's academic success at
Fayetteville State University. Compare [D.E. 6], with [D.E. 35-1]. Livingston's proposed second
amended complaint is 72 pages long and contains 4 73 paragraphs, while Livingston's first amended
complaint is 68 pages long and contains 456 paragraphs. Id.
Livingston's proposed amendment does not ''nudge[] [his] claims," Bell Atl. Com. v.
Twombly, 550 U.S. 544, 570 (2007), beyond the realm of "mere possibility" into "plausibility."
Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). Moreover, Livingston's new allegations fail to
establish that this court has subject-matter jurisdiction. Merely adding allegations to a complaint
'
does not, by itself, make a claim plausible. For example, Livingston's new allegations concerning
/
Bettis's alleged false testimony do not make Livingston's selective prosecution claim plausible or
' establish that this court has subject-matter jurisdiction over Livingston's claims attacking the annual
District Bar dues. See [D.E. 35-1] ~~ 454--69. Livingston's vague and conclusory allegations would
not survive a motion to dismiss. See Johnso!l, 2018 WL 4289456, at *7-9. Thus, Livingston's
proposed amendment is futile, and the court denies Livingston's motion to amend.
IV.
In sum, the court GRANTS defendants' motions to dismiss [D.E. 8, 20, 26], DENIES
Livingston's motion for leave to file an amended complaint [D.E. 35], and DISMISSES without
4
For example, in paragraph 11, Livingston's first amended complaint states: "A condition ·
of Plaintiff's restoration to state practice is payment of all accrued Bar dues." [D.E. 6] ~ 11.
Livingston's second amended complaint amends the statement as follows: "A condition of
Plaintiff's restoration to state practice is payment of all accrued Bar dues, conferring standing upon
Plaintiff to cont~~t the constitutionality of such dues." [D.E. 35-1] ~ 11.
12
prejudice the federal claims. The court DECLINES to exercise supplemental jurisdiction over
'
Livingston's state law claims and DISMISSES those claims without prejudice. The clerk shall close
the case.
SO ORDERED. This__!:_ day ofFebruary 2019.
United States District Judge
13
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