Marshall v. Washington State Bar Association et al
Filing
99
ORDER denying 87 Motion for Attorney Fees by Samuel Conti.(TD)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE WESTERN DISTRICT OF WASHINGTON
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AT SEATTLE
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BRADLEY MARSHALL,
Plaintiff,
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v.
For the Western District of Washington
United States District Court
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WASHINGTON STATE BAR ASSOCIATION,
et al.,
Defendants.
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I.
) Case No. CV-11-5319 SC
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) ORDER DENYING DEFENDANTS'
) MOTION FOR ATTORNEY FEES
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INTRODUCTION
Plaintiff Bradley Marshall ("Marshall") brought this action
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pro se to challenge his disbarment by the Washington Supreme Court.
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Marshall, an African-American, alleged that his disbarment was
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motivated by racial prejudice on the part of the fifty-four
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defendants in this action, including the Washington State Bar
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Association ("WSBA") and several of its members (collectively, the
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"WSBA Defendants").
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On May 23, 2012, the Court granted the WSBA Defendants' motion
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for judgment on the pleadings and dismissed Marshall's action with
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prejudice.
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Marshall's claims had been raised and rejected in a number of
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previous actions and were therefore barred by res judicata and the
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Rooker-Feldman doctrine.
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Marshall was a vexatious litigant and entered a "pre-filing order"
ECF No. 79 ("May 23 Order").
Id. at 1-2.
The Court found that
The Court also found that
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requiring him to seek leave of the Court before filing future
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actions against the defendants in connection with his disbarment.
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Id. at 27-29.
Now the WSBA Defendants seek an order requiring Marshall to
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under 28 U.S.C. § 1927.
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is fully briefed.
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finds this matter appropriate for resolution without oral argument.
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United States District Court
pay a portion of the WSBA Defendants' attorney fees as a sanction
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For the Western District of Washington
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As detailed below, the Court DENIES the motion.
ECF No. 87 ("Atty Fees Mot.").
ECF Nos. 91 ("Opp'n"), 96 ("Reply").
The motion
The Court
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II.
BACKGROUND
In its May 23 Order, the Court reviewed in detail Marshall's
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previous attempts to challenge his disbarment.
See May 23 Order at
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3-11.
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provide a comprehensive review of the procedural history here.
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Suffice it to say that this action represents Marshall's fourth
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attempt to challenge his disbarment from the practice of law in
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Washington state.
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before the Washington Supreme Court, Marshall argued that his due
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process rights had been violated because of bias on the part of his
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WSBA hearing officers.
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proceedings were pending in Washington state court, Marshall filed
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two unsuccessful collateral attacks in federal court, alleging
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equal protection and due process violations in both proceedings.
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Id. at 6-8.
Both collateral attacks were dismissed with prejudice.
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Id. at 7-9.
The Ninth Circuit affirmed the dismissal of Marshall's
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second collateral attack, characterizing it as vexatious and
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wasteful.
The Court assumes familiarity with that Order and will not
Id. at 1.
During his disbarment proceedings
Id. at 4.
While his disciplinary
Marshall v. Wash. State Bar Ass'n, 448 Fed. Appx. 661,
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663 (9th Cir. 2011).
Marshall filed this action on April 22, 2011, after the Ninth
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Id. at 9.
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similar to the allegations set forth in his prior actions.
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9-10.
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action, Marshall alleged various ex parte communications among his
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WSBA hearing officer, WSBA officials, and the justices of the
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United States District Court
Circuit affirmed the dismissal of his second collateral attack.
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For the Western District of Washington
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Washington Supreme Court during WSBA meetings.
Marshall's allegations in this action are substantially
However, there are some differences.
Id. at
For example, in this
Id. at 10.
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Further, Marshall asserted different causes of action this time
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around, framing the defendants' alleged wrongdoing as employment
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discrimination.
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was the same as the others: Marshall sought damages and injunctive
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relief in connection with his disciplinary proceedings.
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Id. at 11.
Nevertheless the goal of this action
Id.
The WSBA Defendants and the other defendants filed separate
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motions for judgment on the pleadings on January 30, 2012.
ECF
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Nos. 52 ("WSBA MJP"), 53.
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pleadings, the WSBA Defendants argued that Marshall's claims were
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barred by the Rooker-Feldman doctrine, res judicata, and collateral
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estoppel, among other things.
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Defendants requested that the Court dismiss Marshall's claims with
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prejudice, declare Marshall a vexatious litigant, and enter a pre-
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filing order requiring Marshall to seek leave of the court prior to
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filing any additional actions in connection with his disbarment.
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Id. at 43.
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requested that the Court sanction Marshall under 28 U.S.C. § 1927
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by requiring him to "'satisfy personally the excess costs,
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expenses, and attorneys' fees reasonably incurred'" by the WSBA
In their motion for judgment on the
WSBA MJP at 14-32.
The WSBA
"In addition, (or as an alternative)," the WSBA
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Defendants.
Id. (quoting 28 U.S.C. § 1927).
The Court ultimately agreed that Marshall's claims were barred
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by the Rooker-Feldman doctrine and res judicata.
Id. at 1-2.
The
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Court also granted the WSBA Defendants almost all of the relief
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they sought.
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declared Marshall a vexatious litigant, and entered a pre-filing
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order against him.
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the WSBA Defendants' request for attorney fees.
The Court dismissed Marshall's claims with prejudice,
Id. at 27-29.
However, the Court did not grant
United States District Court
For the Western District of Washington
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III. DISCUSSION
The WSBA defendants now seek the attorney fees that the Court
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declined to grant them in its May 23 Order.
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again move under 28 U.S.C. § 1927, which provides:
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The WSBA Defendants
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Any attorney or other person admitted to conduct cases in
any court of the United States or any Territory thereof
who
so
multiplies
the
proceedings
in
any
case
unreasonably and vexatiously may be required by the court
to satisfy personally the excess costs, expenses, and
attorneys' fees reasonably incurred because of such
conduct.
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The award of § 1927 sanctions is "committed to the sound discretion
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of the district court."
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1985).
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where there has been a finding of bad faith.
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Corp. v. City of Portland, 897 F.2d 1519, 1528 (9th Cir. 1990).
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"Bad faith is present when an attorney knowingly or recklessly
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raises a frivolous argument, or argues a meritorious claim for the
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purpose of harassing an opponent."
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omitted).
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In re Hunt, 754 F.2d 1290, 1294 (5th Cir.
However, a district court may only award § 1927 sanctions
W. Coast Theater
Id. (internal quotations
The WSBA Defendants argue that the award of § 1927 sanctions
is appropriate because Marshall chose to file this action after his
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dismissed with prejudice.
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Defendants point out that the Ninth Circuit characterized
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Marshall's last collateral attack as "vexatious and wasteful."
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They also point out that the Court has already found that Marshall
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is a vexatious litigant with respect to his disbarment proceedings.
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Id. (citing May 23 Order at 27).
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not be sanctioned for filing a civil rights complaint and, if
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United States District Court
two prior collateral attacks on his disbarment proceedings were
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For the Western District of Washington
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sanctions are awarded, they "will surely chill access to the
Atty. Fees Mot. at 5.
The WSBA
Id.
Marshall responds that he should
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courts, particularly by those who are victims of racial
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discrimination."
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be sanctioned under § 1927 because he is no longer a lawyer and he
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represented himself pro se.
Opp'n at 5.
Marshall also argues that he cannot
Id. at 6.
While § 1927 sanctions may be imposed on pro se litigants in
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the Ninth Circuit, Wages v. Internal Revenue Serv., 915 F.2d 1230,
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1235-36 (9th Cir. 1990),1 the Court finds that they would be
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inappropriate here.
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vexatious litigant with respect to his disbarment proceedings.
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However, such a finding does not automatically require the
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imposition of sanctions.
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this case, the narrowly tailored pre-filing order previously
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entered against Marshall is sufficient.
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Marshall, at least in part: Courts should be cautious about issuing
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sanctions against plaintiffs who bring civil rights suits.
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fact that Marshall previously filed two unsuccessful collateral
The Court maintains that Marshall is a
See In re Hunt, 754 F.2d at 1294.
In
The Court agrees with
The
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Other circuits have disagreed with the Ninth Circuit's position
on this issue. See Sassower v. Field, 973 F.2d 75, 80 (2d Cir.
1992) (holding that § 1927 sanctions may not be imposed against pro
se litigants).
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attacks to vindicate alleged civil rights violations does not
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warrant the imposition of sanctions, even if those collateral
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attacks were substantially similar to the instant action.
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IV.
CONCLUSION
For the reasons set forth herein, the Court DENIES the WSBA
Defendants' motion for attorney fees.
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United States District Court
For the Western District of Washington
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IT IS SO ORDERED.
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Dated:
July 20, 2012
UNITED STATES DISTRICT JUDGE
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