Novel, et al., v. State of New York et al
Filing
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OPINION AND ORDER granting 21 Motion to Dismiss. Signed by Judge James L Graham on 11/12/2014. (ds)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Sur Novel, et al.,
Case No. 2:13-cv-698
Plaintiffs,
v.
Judge Graham
State of New York, et al.,
Magistrate Judge Abel
Defendants.
OPINION AND ORDER
This matter is before the Court on the Defendants’ Motion to Dismiss (doc. 21). For the
reasons that follow, the Court GRANTS the Defendants’ Motion (doc. 21) and DISMISSES
WITH PREJUDICE the Plaintiffs’ Amended Complaint (doc. 14).
I.
Background
This dispute concerns the suspension of Plaintiff Sur Novel’s license to practice law in
the State of New York. Since 2002, Plaintiff Sur Novel has been a resident of Thailand and a
licensed attorney in the State of New York. Am. Compl. at ¶¶ 17–18, doc. 14. In 2010, following
contentious, intra-family litigation over a deceased family member’s estate in Ohio, Plaintiff Sur
Novel filed a lawsuit in Ohio state court against the attorney responsible for that litigation. Id. at
¶¶ at 20–22, 27. Based on Novel’s conduct during that litigation, the Defendants initiated
attorney disciplinary proceedings against him in the State of New York.
The Defendants in this case are: the State of New York; the Committee on Professional
Standards (COPS) for the Third Judicial Department, State of New York; Jevon Garrett; and
Peter Torncello. The Committee on Professional Standards “is the official body authorized under
rules of the Appellate Division, Third Department to investigate allegations of attorney
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misconduct, to bring charges and to prosecute attorneys when charges are brought.” Capoccia v.
Comm. on Prof’l Standards, No. 89 Civ. 866, 1990 WL 211189, at *1 (N.D.N.Y. Dec. 20, 1990).
Defendants Torncello and Garrett are COPS attorneys who investigated and prosecuted the
disciplinary case against Novel.
On June 27, 2013, the Committee on Professional Standards suspended Novel’s 1 license
for six months as a result of his conduct during the Ohio state court litigation. Am. Compl. at ¶
29. Among other findings, the Defendants found that Novel: (1) engaged in the unauthorized
practice of law in Ohio in intra-family litigation; (2) engaged in conflicts of interest without a
disclosure of the conflict or a writing indicating informed consent; (3) behaved in an undignified
and discourteous matter; and (4) engaged in conduct involving dishonesty, fraud, deceit, or
misrepresentation. See Novel v. Zapor, et al., 2:12-cv-00737-JLG-TPK (S.D. Ohio), doc. 19 at 2.
Following the suspension of his license in New York, Novel filed a 61-page Complaint in
the Southern District of Ohio against the Defendants. In his initial Complaint (doc. 2), Novel
alleged numerous violations of his constitutional rights and requested declaratory and injunctive
relief from the Defendants’ suspension of his license to practice law in New York. Specifically,
Novel alleged that the Defendants violated his right to equal protection and due process under
the Fourteenth Amendment of the United States Constitution as a result of their conduct during
disciplinary proceedings that led to the suspension of his license to practice law in New York.
After reviewing Novel’s Complaint, the Court entered an Order stating that “[t]his Court
may not stay or otherwise grant plaintiff relief from an order of a New York Court,” citing the
Rooker-Feldman doctrine. July 17, 2013 Order at 1, doc. 5. Further, the Court ordered Novel “to
show cause why this case is not subject to dismissal on sovereign immunity grounds.” Id.
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Unless otherwise indicated, “Novel” refers to Plaintiff Sur Novel.
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Thereafter, Novel submitted a 39-page Amended Complaint (doc. 14). The Amended
Complaint includes three new plaintiffs, Anna Craig, Jerimy Mulligan, and Abby Novel, and
raises additional claims of civil rights violations against the Defendants based on their alleged
violation of the Plaintiffs’ Fourteenth Amendment right to equal protection and due process of
law. The Plaintiffs bring suit against Defendants Torncello and Grant in their individual capacity
pursuant to 42 U.S.C. § 1983 for alleged violations of the Constitution and federal law. Am.
Compl. at 37. Further, the Plaintiffs request “declaratory and injunctive relief giving full faith
and credit to the Ohio court rulings they have cited herein and reinstatement of Plaintiff Novel’s
New York attorney license.” Id. Continuing, they request:
declaratory relief to mitigate the damages to [Novel’s] professional reputation by
declaring he: 1) did not engage in a conflict of interest “in Ohio”; 2) did not act in
an undignified or discourteous manner before a tribunal “in Ohio”; 3) did not
engage in conduct involving dishonesty, fraud, deceit, or misrepresentation “in
Ohio”; and 4) did not engage in the unauthorized practice of law “in Ohio”.
Id.
The Defendants subsequently filed a Motion to Dismiss (doc. 21). In their Motion, the
Defendants move for dismissal of the Plaintiffs’ Amended Complaint pursuant to Federal Rules
of Civil Procedure 12(b)(2), (3), and (6). The Defendants argue that: (1) the Court lacks personal
jurisdiction over them because of their insufficient contacts with the State of Ohio; (2) the
Plaintiffs’ claims are barred by the Eleventh Amendment; (3) the Plaintiffs’ claims are barred by
the Rooker-Feldman doctrine; and (4) Defendants Torncello and Garrett are entitled to quasijudicial immunity. In the alternative, if the Court does not dismiss the action, the Defendants
maintain that venue should be transferred to the United States District Court for the Northern
District of New York.
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II.
Discussion
A.
Sovereign Immunity
Assuming arguendo that the Plaintiffs made a prima facie showing of jurisdiction as to
each defendant, their Amended Complaint is subject to dismissal on sovereign immunity
grounds. The Eleventh Amendment of the United States Constitution generally bars suits by
citizens of a state against a state in federal court, League of Women Voters of Ohio v. Brunner,
548 F.3d 463, 474 (6th Cir. 2008), “regardless of the nature of the relief sought,” Pennhurst State
Sch. & Hosp. v. Halderman, 465 U.S. 89, 100–01 (1984). There are numerous exceptions to this
general rule, including: (1) when the state has waived its immunity and consented to suit; (2)
when Congress has abrogated the state’s immunity; or (3) when a state official is sued in his
official capacity for purely injunctive relief. Ernst v. Rising, 427 F.3d 351, 358–59 (6th Cir.
2005) (en banc).
Here, the Plaintiffs have sued the State of New York; the Committee on Professional
Standards for the Third Judicial Department, State of New York; Jevon Garrett in his individual
and official capacity; and Peter Torncello in his individual and official capacity. The Plaintiffs’
prayer for relief seeks financial damages in excess of $75,000 against Defendants Garrett and
Torncello in their individual capacities and “declaratory 2 and injunctive 3 relief giving full faith
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Even if the Plaintiffs’ request for declaratory relief was properly before the Court, the Court would
decline to exercise jurisdiction over it. The Declaratory Judgment Act provides that “[i]n a case of actual
controversy within its jurisdiction . . . any court of the United States, upon the filing of an appropriate pleading, may
declare the rights and other legal relations of any interested party seeking such declaration, whether or not further
relief is or could be sought.” 28 U.S.C. § 2201(a). The Supreme Court has “repeatedly characterized the Declaratory
Judgment Act as ‘an enabling Act, which confers a discretion on the courts rather than an absolute right upon the
litigant.’” Wilton v. Seven Falls Co., 515 U.S. 277, 287 (1995) (quoting Public Serv. Comm’n of Utah v. Wycoff
Co., 344 U.S. 237, 241 (1952)). The Plaintiffs’ request for declaratory relief asks this Court to effectively overturn
the findings of a New York state court regarding Novel’s unauthorized practice of law. Such a finding would
unnecessarily increase the friction between federal and state courts and improperly encroach on state jurisdiction,
Grand Trunk W. R.R. v. Consol. Rail Corp., 746 F.2d 323, 326 (6th Cir. 1984).
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and credit to Ohio court rulings . . . and a reinstatement of Plaintiff Novel’s New York attorney
license.” Am. Compl. at 37.
The Plaintiffs’ suit against the State of New York and the Committee on Professional
Standards is barred by the Eleventh Amendment. The State of New York has not waived its
immunity and consented to suit, and Congress has not abrogated the state’s immunity in the
context of 42 U.S.C. § 1983, Quern v. Jordan, 440 U.S. 332, 341 (1979). As an arm of the State
of New York, the Committee on Professional Standards is entitled to immunity from suit as well.
See Anonymous v. Ass’n of the Bar of N.Y., 515 F.2d 427, 433 (2d Cir. 1975) (determining that
the state bar association’s grievance committee acted as a quasi-judicial body and an arm of the
Appellate Division). To the extent the Plaintiffs’ Amended Complaint brings a claim against
Defendants Garrett and Torncello in their official capacities for declaratory relief, that claim fails
for the same reason. A suit against a state official in his official capacity is deemed to be a suit
against the state for purposes of the Eleventh Amendment. Cady v. Arenac Cnty., 574 F.3d 334,
344 (6th Cir. 2009).
Finally, to the extent the Plaintiffs bring a claim for injunctive relief against Defendants
Garrett and Torncello in their official capacities, Defendants Garrett and Torncello are entitled to
sovereign immunity. The Ex parte Young exception to sovereign immunity permits federal courts
to enjoin a “state official” from violating federal law. Lawson v. Shelby Cnty, 211 F.3d 331, 335
(6th Cir. 2000) (citing Ex parte Young, 209 U.S. 123 (1908)). To determine whether this
exception applies, courts consider “whether [the] complaint alleges an ongoing violation of
federal law and seeks relief properly characterized as prospective.” Verizon Md., Inc. v. Public
Serv. Comm’n of Md., 535 U.S. 635, 645 (2002). Here, the Plaintiffs seek to remedy past
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The Plaintiffs’ request for injunctive relief in the form of the reinstatement of Novel’s license to practice
law in New York is moot. Novel’s license was suspended for six months on June 27, 2013. Am. Compl. at ¶ 29.
Based on the Plaintiffs’ allegations, that suspension concluded on December 27, 2013.
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wrongs, rather than ongoing violations of federal law, and the relief sought is retroactive, rather
than prospective, in nature. Consequently, the Ex parte Young exception does not apply, and
Defendants Torncello and Garrett are immune from suit.
For the foregoing reasons, the Defendants are entitled to sovereign immunity as to the
Plaintiffs’ claims for injunctive and declaratory relief. 4
B.
Quasi-Judicial Immunity
Again, assuming arguendo that the Plaintiffs made a prima facie showing of jurisdiction
as to each defendant, the Plaintiffs’ claim for monetary damages against Defendants Torncello
and Garrett in their individual capacities would still be subject to dismissal. The Plaintiffs allege
that Defendants Torncello and Garrett violated their constitutional rights while Defendants
Torncello and Garrett were performing their official roles as disciplinary counsel for the
Committee on Professional Standards. 5 Defendants Torncello and Garrett are therefore entitled
to absolute, quasi-judicial immunity from the Plaintiffs’ claims against them in their individual
capacities. See Neroni v. Coccoma, No. 3:13-CV-1340, 2014 WL 2532482, at *9 (N.D.N.Y.
June 5, 2014) (quoting Koziol v. Peters, No. 12–CV–823, 2012 WL 4854589, at *8 (N.D.N.Y.
Oct. 11, 2012)) (finding that claims against COPS attorneys for acts performed as part of official
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The Plaintiffs’ claims for declaratory and injunctive relief are also subject to dismissal under the RookerFeldman doctrine. The Rooker-Feldman doctrine applies in “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, 283–84 (2005). Here, the loss of Novel’s license to practice law in New York was caused by a New York state
court judgment. The Plaintiffs effectively seeks appellate review of that state court judgment. It is well-established
that lower federal courts lack the subject matter jurisdiction to conduct appellate review of state court decisions.
Berry v. Schmitt, 688 F.3d 290, 289 (6th Cir. 2012) (citing Exxon Mobil Corp., 544 U.S. at 291).
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The Plaintiffs offer the conclusory assertion that Defendants Torncello and Garrett were acting “outside
the scope of their judicial capacity and jurisdiction” during their investigation and prosecution of Novel. Am.
Compl. at ¶ 63. The Plaintiffs make no factual allegations to support this assertion. Instead, their allegations concern
Defendant Torncello’s and Garrett’s actions in investigating and prosecuting Novel, actions that fall within the
scope of their official duties as disciplinary counsel for the Committee on Professional Standards.
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duties were barred by the doctrine of quasi-judicial immunity); Aretakis v. Comm. on Prof’l
Standards, No. 08 Civ. 9712, 2009 WL 2229578, at *3 (S.D.N.Y. July 27, 2009) (same); see also
Moncier v. Jones, 557 F. App’x 407, 409–10 (6th Cir. 2014) (finding that disciplinary counsel
for Tennessee Board of Professional Responsibility was absolutely immune from suit for
damages where conduct that allegedly violated the plaintiff’s constitutional rights occurred while
counsel was performing her official duties); Pak v. Ridgell, 476 F. App’x 750 (4th Cir. 2012)
(per curiam) (holding “that the district court properly found [assistant bar counsel for the
Attorney Grievance Commission of Maryland] to be immune from suit for her participation in
Pak’s disciplinary proceedings”); Hirsh v. Justices of the Sup. Ct. of the State of Cal., 67 F.3d
708, 715 (9th Cir. 1995) (granting bar counsel absolute quasi-judicial immunity for their role in
attorney disciplinary system); Simons v. Bellinger, 643 F.2d 774 (D.C. Cir. 1980) (granting
absolute immunity to members of the Committee on Unauthorized Practice of Law, who
investigate violations, determine who is prosecuted, and directs the prosecution); McQueen v.
Brown, No. 2:11–cv–082, 2011 WL 855128, at *1 (S.D. Ohio Mar. 9, 2011) (Graham, J.)
(finding that an assistant disciplinary counsel “charged . . . with assisting in the regulation of
attorneys” was entitled to absolute quasi-judicial immunity from claims under § 1983 for actions
performed in the course of her official duties).
III.
Conclusion
For the foregoing reasons, the Defendants’ Motion to Dismiss (doc. 21) is GRANTED
and the Plaintiffs’ Amended Complaint (doc. 14) is DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.
s/ James L. Graham
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JAMES L. GRAHAM
United States District Judge
DATE: November 12, 2014
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