Fitzhugh v. Miller

• Court: District Court, D. Arizona
• Decided: April 2, 2020
• Docket: 2:19-cv-04632
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Edward D. Fitzhugh, No. CV-19-04632-PHX-DWL

10 Plaintiff, ORDER

11 v.

12 Shauna Miller, et al.,

13 Defendants. 14 15 INTRODUCTION 16 Plaintiff Edward Fitzhugh (“Fitzhugh”), a disbarred attorney who is proceeding pro 17 se in this case, hasn’t experienced much success in the legal system in recent years. For 18 part of 2011 and during half of 2013, Fitzhugh was suspended from the practice of law in 19 Arizona. During his 2013 suspension, Fitzhugh also filed for bankruptcy. After a brief 20 glimmer of hope—Fitzhugh’s suspension ended in late 2013 and the bankruptcy court 21 granted him a discharge in 2014—things took a turn for the worse. In 2016, Fitzhugh was 22 charged with an array of disciplinary violations. The bar proceedings were a disaster. 23 Fitzhugh missed deadlines, defaulted, was ordered disbarred, and then filed a barrage of 24 pleadings that resulted in him being declared a vexatious litigant. On top of all of this, the 25 bankruptcy court revoked Fitzhugh’s discharge after determining he had engaged in fraud. 26 Undeterred, Fitzhugh has now sued the State Bar of Arizona (“SBA”) and Shauna 27 Miller (“Miller”) (collectively, “Defendants”), the SBA prosecutor who handled his 2016 28 case. He asserts federal claims under 42 U.S.C. § 1983 and state-law claims for “abuse of 1 process” and “prosecutorial misconduct/negligence.” As a remedy, he seeks only money 2 damages—he does not request reversal of the SBA’s disbarment decision. 3 Now pending before the Court are (1) Defendants’ motion to dismiss (Doc. 14), (2) 4 Defendants’ request for judicial notice (Doc. 13), and (3) Fitzhugh’s motion for leave to 5 file a surreply (Doc. 28). For the following reasons, the motion to dismiss will be granted, 6 the request for judicial notice will be granted, the motion to file a surreply will be denied, 7 and this action will be terminated. 8 BACKGROUND 9 The facts as alleged in the operative complaint (Doc. 31), and as established through 10 Defendants’ unopposed request for judicial notice (Doc. 13)1 and the exhibits attached to 11 the complaint, are as follows. 12 I. Fitzhugh’s Bar And Bankruptcy Proceedings 13 In October 2011, Fitzhugh was suspended from the practice of law in Arizona for a 14 period of 30 days. (Doc. 13-3 at 18.) 15 In March 2013, Fitzhugh was suspended from the practice of law in Arizona for a 16 period of six months. (Doc. 13-2 at 2; Doc. 13-3 at 17.) 17 In May 2013, Fitzhugh filed a petition for Chapter 7 bankruptcy. (Doc. 13-9 at 3.) 18 In May 2014, the bankruptcy court issued an order of discharge. (Doc. 13-7 at 2.) 19 On April 29, 2016, Miller, in her capacity as Senior Bar Counsel, filed a four-count 20 complaint against Fitzhugh. (Doc. 31 ¶ 13; Doc. 13-2 at 2-19.) The allegations in the 21 complaint stemmed from conduct during Fitzhugh’s representation of various clients, 22 Fitzhugh’s conduct while suspended from the practice of law, and Fitzhugh’s conduct 23 during his bankruptcy proceeding. (Id.).2 24 1 Fitzhugh indicates in the caption of his response (Doc. 23) that he objects to 25 Defendants’ request for judicial notice. His response, however, does not provide any explanation for his objection. Defendants request that the Court take judicial notice of 26 documents relating to Fitzhugh’s bar proceedings and bankruptcy proceedings, but only for their existence and not for the underlying truth. (Doc. 13 at 3.) The Court “may take 27 judicial notice of court filings and other matters of public record.” Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006). Therefore, Defendants’ 28 request for judicial notice will be granted. 2 Between April 2015 and April 2016, the Attorney Probable Cause Committee of the 1 In May 2016, a default was entered against Fitzhugh for failure to timely respond to 2 the complaint. (Doc. 13-3 at 2.) 3 In June 2016, Fitzhugh sought and obtained an extension to file a responsive 4 pleading. (Id.) However, after the presiding disciplinary judge (“PDJ”) determined that 5 Fitzhugh had failed to comply with the new deadline, and that Fitzhugh’s subsequent 6 attempt to remedy the error was ineffective, the default was allowed to remain in effect. 7 (Id. at 2-4.)3 8 In July 2016, Fitzhugh’s aggravation and disciplinary hearing took place. (Id. at 4.) 9 The hearing panel consisted of the PDJ, a member of the public, and an attorney. (Id.) 10 In August 2016, the hearing panel issued its “Decision and Order Imposing 11 Sanctions.” (Doc. 13-3.) In a nutshell, the hearing panel concluded (1) there was clear and 12 convincing evidence that Fitzhugh had violated various ethical rules, (2) the “most serious 13 ethical violations” involved making intentional misrepresentations to the SBA and the 14 bankruptcy court, and (3) the appropriate sanction, in light of Fitzhugh’s past suspensions, 15 “similar misconduct,” deception, and lack of contrition, was disbarment. (Id. at 14-22). 16 In September 2016, Fitzhugh’s disbarment went into effect. (Doc. 13-4 at 2.) 17 In April 2017, the Arizona Supreme Court denied Fitzhugh’s petition for review. 18 (Doc. 13-5 at 2.) 19 In August 2018, the PDJ issued an order declaring that Fitzhugh was a vexatious 20 litigant. (Doc. 13-6 at 3.) This order was predicated on Fitzhugh’s filing of a “series of . . 21 . pleadings” following the issuance of the hearing panel’s disbarment order. (Id.) 22 In October 2018, the Arizona Supreme Court declined to assert jurisdiction over 23 Fitzhugh’s petition for a special action concerning the vexatious-litigant order. (Id.) 24 In November 2018, the Arizona Supreme Court denied Fitzhugh’s motion for 25 reconsideration. (Id. at 4.) 26 Supreme Court voted on whether each count was supported by probable cause. (Doc. 13- 27 2 at 20-27.) All four votes resulted in unanimous probable-cause findings. (Id.) 28 3 In his response to the motion to dismiss, Fitzhugh identifies various reasons why, in his view, the PDJ erred by entering and maintaining the default. (Doc. 23 at 1-3.) 1 II. The Current Lawsuit 2 Fitzhugh initiated this action in July 2019 (Doc. 1) and filed a first amended 3 complaint (“FAC”) in December 2019 (Doc. 31). 4 The FAC alleges that Miller “engaged in a personal vendetta against Plaintiff to 5 harass and take adverse actions against him.” (Doc. 31 ¶ 7.) The source of this vendetta, 6 according to the FAC, is an earlier bar proceeding in which Fitzhugh successfully 7 represented a client “regarding her application for admission . . . to practice law in Arizona” 8 over Miller’s objection. (Id. ¶¶ 5-6.) The FAC further alleges that Miller sought to carry 9 out this vendetta by including, in the bar complaint she filed in April 2016, “knowingly 10 false allegations intended to harm Plaintiff in his professional career and personal life.” 11 (Id. ¶ 14.)4 Based on these allegations, the FAC asserts four causes of action: 12 ▪ Count One asserts a state-law claim against Miller for “abuse of process,” alleging 13 that she “abused the legal process and the power and authority vested in her employer to 14 pursue her personal vendetta against Plaintiff.” (Id. ¶¶ 15-17.) 15 ▪ Count Two asserts a state-law claim against Miller for “Prosecutorial 16 Misconduct/Negligence.” (Id. ¶¶ 18-22.) 17 ▪ Count Three asserts a claim against Miller under 42 U.S.C. § 1983 for violation 18 of his “Constitutionally Protected . . . Property Rights.” (Id. ¶¶ 23-24.) The property right 19 at issue is Fitzhugh’s “license[] to practice law in Arizona.” (Id. ¶ 1.) 20 ▪ Count Four asserts a claim against the SBA for “Negligent Hiring, Training, and 21 Supervision.” (Id. ¶¶ 25-27.) This claim appears to be based both on federal law (42 22 U.S.C. § 1983) and state law. (Id.) 23 ANALYSIS 24 I. Motion To Dismiss 25 Defendants identify an array of reasons why the FAC should be dismissed. First, 26 Defendants argue the Court lacks jurisdiction over any claims against the SBA because it 27

28 4 The FAC also alleges that Miller intentionally withheld “critical evidence” during a bar investigation into a separate matter. (Doc. 31 ¶¶ 8-12.) 1 is entitled to immunity under the Eleventh Amendment. (Doc. 14 at 4-6.) Second, 2 Defendants argue the Rooker-Feldman doctrine precludes subject-matter jurisdiction over 3 any claims grounded in Fitzhugh’s disbarment. (Id. at 6-8.) Third, Defendants argue that 4 Miller enjoys absolute immunity because she is being sued for conduct undertaken in a 5 prosecutorial capacity. (Id. at 8-11.) Fourth, Defendants argue that Count One, the “abuse 6 of process” claim, fails to state a claim under Rule 12(b)(6). (Id. at 11.) Fifth, Defendants 7 argue that, even putting aside the Eleventh Amendment, the SBA is not a proper § 1983 8 defendant because it is not a “person.” (Id. 12-13.) Sixth, Defendants argue that Count 9 Four, the negligent training/supervision claim, necessarily fails under both federal and state 10 law. (Id. at 13-14.) 11 A. Subject Matter Jurisdiction 12 Defendants argue the Court lacks subject matter jurisdiction over some or all of 13 Fitzhugh’s claims. (Doc. 14 at 4-8.) “[A] federal court generally may not rule on the merits 14 of a case without first determining that it has jurisdiction over the category of claim in suit 15 (subject-matter jurisdiction) and the parties (personal jurisdiction).” Sinochem Int’l Co. v. 16 Malaysia Int’l Shipping Corp., 549 U.S. 422, 430-31 (2007). “[T]he Supreme Court has 17 specifically instructed that a district court must first determine whether it has jurisdiction 18 before it can decide whether a complaint states a claim.” Moore v. Maricopa Cty. Sheriff’s 19 Office, 657 F.3d 890, 895 (9th Cir. 2011). Thus, the Court will begin by addressing the 20 arguments that Defendants characterize as pertaining to subject matter jurisdiction. 21 1. Rooker-Feldman 22 Defendants argue the Rooker-Feldman doctrine precludes Fitzhugh from invoking 23 the Court’s jurisdiction to assert any claims stemming from his disbarment. (Doc. 14 at 6- 24 8.) 25 The Rooker-Feldman doctrine prohibits district courts from hearing “cases brought 26 by state-court losers complaining of injuries caused by state-court judgments rendered 27 before the district court proceedings commenced and inviting district court review of those 28 judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 283 (2005). 1 The doctrine “exhibit[s] the limited circumstances in which [the U.S. Supreme Court’s] 2 appellate jurisdiction over state-court judgments . . . precludes a United States district court 3 from exercising subject-matter jurisdiction in an action it would otherwise be empowered 4 to adjudicate.” Id. at 291. Rooker-Feldman is not triggered simply because there is or was 5 a parallel state-court action. Id. at 292. Although a parallel state-court proceeding may 6 result in other forms of preclusion, Rooker-Feldman is only triggered when a district court 7 is called upon “to overturn an injurious state-court judgment.” Id. at 291-92. Properly 8 understood, then, Rooker-Feldman is itself a “fairly narrow preclusion doctrine,” separate 9 and distinct from claim and issue preclusion, that prohibits a district court from reviewing 10 a state court’s decision. Carmona v. Carmona, 603 F.3d 1041, 1050 (9th Cir. 2010). See 11 also Cooper v. Ramos, 704 F.3d 772, 778 (9th Cir. 2012) (“We recognize that the Supreme 12 Court has been very sparing in its invocation of the doctrine, so we are careful not to sweep 13 too broadly.”) (citation omitted). 14 In Noel v. Hall, 341 F.3d 1148 (9th Cir. 2003), the Ninth Circuit provided 15 comprehensive guidance concerning Rooker-Feldman and its limited applicability. Noel 16 arose from a failed agreement to train a racehorse. Id. at 1151. The demise of the 17 relationship resulted in four different state court lawsuits. Id. at 1152-53. Eventually, the 18 would-be trainer, Noel, filed suit in federal court, alleging a variety of federal and state- 19 law claims, including a “fiduciary duty claim . . . which [was] essentially the same issue of 20 fiduciary duty [that] was being litigated” in one of the state court actions. Id. at 1154. The 21 district court dismissed that claim pursuant to Rooker-Feldman but the Ninth Circuit 22 reversed. After thoroughly recounting the history of the Rooker-Feldman doctrine, the 23 court announced the following “general formulation [that] describes the distinctive role of 24 the Rooker–Feldman doctrine in our federal system”: 25 If a federal plaintiff asserts as a legal wrong an allegedly erroneous decision by a state court, and seeks relief from a state court judgment based on that 26 decision, Rooker–Feldman bars subject matter jurisdiction in federal district 27 court. If, on the other hand, a federal plaintiff asserts as a legal wrong an allegedly illegal act or omission by an adverse party, Rooker–Feldman does 28 not bar jurisdiction. If there is simultaneously pending federal and state court 1 litigation between the two parties dealing with the same or related issues, the federal district court in some circumstances may abstain or stay proceedings; 2 or if there has been state court litigation that has already gone to judgment, 3 the federal suit may be claim-precluded under [28 U.S.C.] § 1738. But in neither of these circumstances does Rooker–Feldman bar jurisdiction. 4 5 Id. at 1164. And in a subsequent case, the Ninth Circuit summarized the test even more 6 succinctly, explaining that if a plaintiff in a federal case “sues . . . an adverse party[], not a 7 state court,” and “does not directly challenge a state court’s factual or legal conclusion,” 8 then the federal lawsuit is “not a forbidden appeal under Rooker-Feldman.” Manufactured 9 Home Cmtys. Inc. v. City of San Jose, 420 F.3d 1022, 1030 (9th Cir. 2005). 10 Noel and its progeny compel the conclusion that Rooker-Feldman doesn’t apply 11 here. Fitzhugh does not seek to set aside the hearing panel’s August 2016 decision, the 12 Arizona Supreme Court’s subsequent rejection of his appeals, or the ultimate act of 13 disbarment. Instead, he seeks monetary damages against Miller and the SBA for alleged 14 violations of his constitutional (and state-law) rights. Because Fitzhugh is not “directly 15 challeng[ing] a state court’s factual or legal conclusion,” Manufactured Home, 420 F.3d at 16 1030, and does not “assert[] as a legal wrong an allegedly erroneous decision by a state 17 court[] and seek[] relief from a state court judgment based on that decision,” Hall, 341 F.3d 18 at 1164, Rooker-Feldman is inapplicable. 19 The cases cited in Defendants’ brief do not compel a different result. In Musselwhite 20 v. State Bar of Texas, 32 F.3d 942 (5th Cir. 1994), an attorney who had been suspended by 21 the Texas State Bar responded by filing a lawsuit in federal court seeking, inter alia, 22 “declaratory and injunctive relief” to overturn the suspension. Id. at 944. The district court 23 dismissed under Rooker-Feldman and the Fifth Circuit affirmed, holding that the attorney 24 was attempting to challenge “aspects of his particular trial” and that “[t]o evaluate [those 25 challenges] would require review of the state court judgment . . . [which] we are without 26 jurisdiction to do.” Id. at 947. Here, in contrast, Fitzhugh isn’t seeking to overturn the 27 relevant “state court judgment” (i.e., the disbarment decision). Instead, he is asserting 28 claims for money damages based on alleged violations of his constitutional and other 1 rights. Critically, even if Fitzhugh were somehow to prevail on those claims, Defendants 2 haven’t shown that such a victory would effectively require the reversal of the underlying 3 disbarment decision. Cooper, 704 F.3d at 777-78 (emphasizing that courts considering the 4 applicability of Rooker-Feldman must “‘pay close attention to the relief sought by the 5 federal-court plaintiff’” and that “[t]he doctrine does not preclude a plaintiff from bringing 6 an ‘independent claim’ that, though similar or even identical to issues aired in state court, 7 was not the subject of a previous judgment by the state court”) (citation omitted).5 8 Finally, it is true that, in Johnson v. Supreme Court of Illinois, 165 F.3d 1140 (7th 9 Cir. 1999), the Seventh Circuit held that Rooker-Feldman precluded a disbarred attorney 10 from asserting a § 1983 claim against the bar officials who had participated in his 11 disbarment proceedings, even though the plaintiff was only seeking money damages and 12 wasn’t seeking reinstatement. The court concluded that Rooker-Feldman remained 13 applicable because “the only support for damages would be the disbarment, and the only 14 support for a finding of liability would be events that were or could have been contested in 15 the disbarment proceedings.” Id. at 1142. Although this reasoning has some force, it is 16 inconsistent with Ninth Circuit law concerning Rooker-Feldman, particularly Ninth Circuit 17 law post-Noel, which this Court obviously must follow. See also Unknown Party v. Ariz. 18 Bd. of Regents, 2019 WL 7282027, *7 (D. Ariz. 2019) (noting differences between Seventh 19 5 Musselwhite is similar to Mothershed v. Justices of Supreme Ct., 410 F.3d 602 (9th 20 Cir. 2005), a Ninth Circuit case not cited in either side’s briefs. The plaintiff in Mothershed was an Oklahoma-barred attorney who lived and practiced in Arizona, where he was 21 unlicensed. Id. at 605. As a result, the plaintiff was censured by the Arizona Supreme Court (for unauthorized practice of law) and then disbarred in Oklahoma. Id. Afterward, 22 the plaintiff filed a sprawling lawsuit in federal court in Arizona in which he attempted to sue the judicial and bar officials in Arizona and Oklahoma who had participated in his 23 disciplinary proceedings. Id. Critically, his argument, just like the plaintiff’s argument in Musselwhite, was that the outcome in both disciplinary proceedings was invalid—he 24 argued that “the Arizona disciplinary proceedings were invalid because he had not been served with a summons” and that “the Oklahoma proceedings were likewise defective 25 because his hearing did not occur between thirty and sixty days after appointment of the trial panel, as required by Rule 6.7 of the Oklahoma Rules Governing Disciplinary 26 Proceedings.” Id. The Ninth Circuit concluded these claims were barred by Rooker- Feldman because they “constitute a particularized challenge to the . . . disciplinary 27 proceedings’ results.” Id. at 607-08. But here, as discussed above, Fitzhugh isn’t seeking to overturn the “disciplinary proceedings’ results”—he is only seeking money damages. 28 1 Circuit and Ninth Circuit law concerning Rooker-Feldman’s scope and applicability). 2 In sum, although there are many problems with Fitzhugh’s litigation strategy, 3 Rooker-Feldman isn’t one of them. 4 2. Eleventh Amendment 5 Defendants argue that the “Court lacks jurisdiction over any claims against the 6 [SBA] because it is entitled to absolute immunity under the Eleventh Amendment.” (Doc. 7 14 at 4, capitalization omitted.) 8 The Eleventh Amendment provides: “The Judicial power of the United States shall 9 not be construed to extend to any suit in law or equity, commenced or prosecuted against 10 one of the United States by Citizens of another State, or by Citizens or Subjects of any 11 Foreign State.” Id. “As the Supreme Court has applied the Eleventh Amendment, an 12 unconsenting State is immune from suits brought in federal courts by her own citizens as 13 well as by citizens of another State.” Pittman v. Oregon Employment Dep’t, 509 F.3d 14 1065, 1071 (9th Cir. 2007) (quotation omitted). Generally, “agencies of the state are [also] 15 immune from private damage actions or suits for injunctive relief brought in federal court.” 16 Mitchell v. Los Angeles Cmty. Coll. Dist., 861 F.2d 198, 201 (9th Cir. 1988). “To determine 17 whether a governmental agency is an arm of the state,” courts examine five factors: 18 [1] whether a money judgment would be satisfied out of state funds, [2] whether the entity performs central governmental functions, [3] whether the 19 entity may sue or be sued, [4] whether the entity has the power to take 20 property in its own name or only in the name of the state, and [5] the corporate status of the entity. 21 Id. “To determine these factors, the court looks to the way state law treats the entity.” Id. 22 Here, the first factor (“whether a money judgment would be satisfied out of state 23 funds”) seems to cut against a finding that the SBA is an arm of the state. This is because 24 the SBA maintains a treasury fund that is derived from the annual fees collected from SBA 25 members. See Ariz. Sup. Ct. R. 32(d)(1), (3) (the SBA’s Board of Governors shall “[f]ix 26 and collect . . . fees approved by the Supreme Court, which shall be paid into the treasury 27 of the State Bar” and shall “make appropriations and disbursements from funds of the 28 1 [SBA] to pay expenses necessary for carrying out its functions”). Presumably—and the 2 Court uses the word presumably because neither party briefed this issue—a money- 3 damages judgment against the SBA could be satisfied using funds from the treasury fund. 4 In that scenario, the first factor wouldn’t be satisfied. With that said, it seems possible that, 5 if a money judgment were large enough, the SBA’s treasury fund would be insufficient to 6 satisfy it. The parties have not addressed whether state funds would be available to pay 7 such a large judgment.6 8 The second factor (“whether the entity performs central governmental functions”) 9 weighs heavily in favor of a finding that the SBA is an arm of the state. The SBA is a 10 creation of the Arizona Supreme Court. See Ariz. Sup. Ct. R. 32(a) (“The Supreme Court 11 of Arizona maintains under its direction and control a corporate organization known as the 12 State Bar of Arizona.”). See also Scheehle v. Justices of the Sup. Ct. of the State of Ariz., 13 120 P.3d 1092, 1100 (Ariz. 2005) (“By virtue of our constitutional power over attorneys 14 as officers of the court, this Court created the State Bar of Arizona.”). The SBA’s role “is 15 completely defined by the [Arizona Supreme Court] . . . [and] acts as the agent of the court 16 under its continuous supervision.” Bates v. State Bar of Ariz., 433 U.S. 350, 361 (1977). 17 Every attorney licensed to practice law in Arizona “must be a member of the [SBA].” Ariz. 18 Sup. Ct. R. 32(a)(1). “The [SBA] exists to serve and protect the public with respect to the 19 provision of legal services and access to justice.” Ariz. Sup. Ct. R. 32(a)(2). It does this 20 in part by “assist[ing] [the Arizona Supreme Court] with the regulation and discipline of 21 persons engaged in the practice of law.” Ariz. Sup. Ct. R. 32(a)(2)(D). The Ninth Circuit 22 6 In Gruber v. Oregon State Bar, 2019 WL 2251826 (D. Or. 2019), the court held that 23 the Oregon State Bar didn’t qualify as an arm of the state under the first Mitchell factor because (1) “[a]ny money judgment would come from the Bar’s collection of fees” and (2) 24 the Oregon legislature had enacted a statute that specifically precluded state liability for the bar’s indebtedness and obligations. Id. at *5 (citing Or. Rev. Stat. § 9.010(6)). Here, 25 in contrast, the parties have not identified any Arizona statute that specifically exempts the state from liability for the SBA’s debts. In any event, the Gruber court ultimately 26 concluded that, even though the first Mitchell factor cut against a finding of Eleventh Amendment immunity, it was not “dispositive” and the other factors supported the 27 conferral of immunity. Id. at *5-7 (“Despite the independent financial status vested in the Bar through the State Bar Act, the legislature intended it to perform central government 28 functions in concert with the Oregon Supreme Court and as such it is an arm of the state entitled to Eleventh Amendment Immunity.”). 1 has stated “lawyers are essential to the primary governmental function of administering 2 justice.” Mothershed, 410 F.3d at 611 (citation omitted). As a result, “States have broad 3 power to regulate the practice of law.” United Mine Workers of Am. v. Ill. State Bar Ass’n, 4 389 U.S. 217, 222 (1967). 5 Fitzhugh argues the third factor cuts in his favor because the SBA “may sue and be 6 sued.” (Doc. 23 at 12-13.) But this argument is based on an earlier version of Rule 32. 7 Before 2017, Rule 32 included a provision allowing the SBA to sue and be sued. 2015 8 Ariz. Sup. Ct. R. 32(a). An amendment, effective January 1, 2017, removed that language. 9 2016 Ariz. Sup. Ct. R. 32. Additionally, under Arizona law, a state agency is “not liable 10 for acts and omissions of its employees constituting . . . [t]he exercise of an administrative 11 function involving the determination of fundamental governmental policy, and “[t]he 12 determination of a fundamental governmental policy . . . include[s]. . . [t]he licensing and 13 regulation of any profession or occupation.” A.R.S. § 12-820.01(A)(2), (B)(3). Thus, the 14 third factor cuts in favor of classifying the SBA as an arm of the state. 15 The fourth factor (“whether the entity has the power to take property in its own name 16 or only in the name of the state”) also weighs in favor of such a classification. Fitzhugh 17 argues the SBA “may enter into contracts and acquire, hold, encumber, dispose of and deal 18 in and with real and personal property.” (Doc. 23 at 12-13.) But again, Fitzhugh bases this 19 argument on a now-obsolete version of Rule 32. The January 2017 amendment removed 20 this language. 21 The fifth factor (“the corporate status of the entity”) weighs against a finding that 22 the SBA is an arm of the state because the SBA is a corporation. Ariz. Sup. Ct. R. 32(a) 23 (“The Supreme Court of Arizona maintains under its direction and control a corporate 24 organization known as the [SBA].”). 25 Although the Mitchell factors present a mixed picture, on balance they support the 26 conclusion that the SBA is an arm of the state and thus immune from suit under the 27 Eleventh Amendment. This outcome is consistent with other decisions by and within the 28 Ninth Circuit addressing the status of state bar associations. See, e.g., Breck v. Doyle, 2019 1 WL 6048847, *2 (9th Cir. 2019) (“Eleventh Amendment immunity extends beyond the 2 state itself. . . . We have previously recognized that both the Nevada Supreme Court and 3 the [State Bar of Nevada] are arms of the State of Nevada, and so are immune from § 1983 4 damages claims.”) (citation omitted); Hirsh v. Justices of the Supreme Court of the State 5 of Cal., 67 F.3d 708, 715 (9th Cir. 1995) (“The Eleventh Amendment’s grant of sovereign 6 immunity bars monetary relief from state agencies such as California’s Bar Association . . 7 . .”); Strojnik v. State Bar of Ariz., 2020 WL 1275781, *3 (D. Ariz. 2020) (“Arizona state 8 courts and courts in this District have definitively held that the State Bar ‘is an arm of the 9 Arizona Supreme Court,’ and therefore, the State Bar ‘is immune from suit under the 10 Eleventh Amendment.’”) (citations omitted). Cf. Hass v. Oregon State Bar, 883 F.2d 1453, 11 1461 (9th Cir. 1989) (concluding that, for antitrust purposes, the Oregon State Bar qualified 12 “as an agency of the State of Oregon”). 13 Accordingly, Fitzhugh’s claims against the SBA must be dismissed.7 14 B. Miller’s Absolute Immunity From § 1983 Liability 15 Defendants argue that Miller, as a prosecutor, has absolute immunity from 16 Fitzhugh’s § 1983 claim for money damages. (Doc. 14 at 8-10.) Fitzhugh responds that 17 Miller is not the type of prosecutor normally afforded absolute immunity, and even if she 18 were, absolute immunity does not apply to investigative and administrative conduct. (Doc. 19 23 at 14-16.) 20 Although “Section 1983, on its face admits of no defense of official immunity . . . 21 Congress did not intend § 1983 to abrogate immunities well grounded in history and reason. 22 Certain immunities were so well established in 1871, when § 1983 was enacted, that we 23 presume that Congress would have specifically so provided had it wished to abolish them.” 24 Buckley v. Fitzsimmons, 509 U.S. 259, 268 (1993) (quotations omitted). One such form of 25 well-established immunity is prosecutorial immunity. As the Ninth Circuit has explained:

26 7 It should be noted that, although the SBA frames its Eleventh Amendment argument as a jurisdictional challenge, the Ninth Circuit has stated that “the Eleventh Amendment is 27 not a true limitation upon the court’s subject matter jurisdiction, but rather a personal privilege that a state may waive.” Hill v. Blind Indus. & Servs. of Md., 179 F.3d 754, 760 28 (9th Cir. 1999). Nevertheless, nomenclature aside, the Eleventh Amendment bars Fitzhugh’s claims against the SBA. 1 “Prosecutorial immunity applies to § 1983 claims. State prosecutors are absolutely 2 immune from § 1983 actions when performing functions ‘intimately associated with the 3 judicial phase of the criminal process,’ or, phrased differently, ‘when performing the 4 traditional functions of an advocate.’ Prosecutors are entitled to qualified immunity, rather 5 than absolute immunity, when they perform administrative functions, or ‘investigative 6 functions normally performed by a detective or police officer.’” Garmon v. County of Los 7 Angeles, 828 F.3d 837, 842-43 (9th Cir. 2016) (citations and internal quotation marks 8 omitted). These principles also apply to state bar prosecutors. Hirsh, 67 F.3d at 715 9 (“[State bar] agency prosecuting attorneys are entitled to quasi-judicial immunity so long 10 as they perform functions similar to . . . prosecutors in a setting like that of a court.”); Clark 11 v. Washington, 366 F.2d 678, 681 (9th Cir. 1966) (“A prosecuting attorney, as a quasi- 12 judicial officer, enjoys immunity from suit under the Civil Rights Act insofar as his 13 prosecuting functions are concerned. . . . As an arm of the Washington Supreme Court in 14 connection with disciplinary proceedings, the Bar Association . . . is therefore entitled to 15 the same immunity which is afforded to prosecuting attorneys in that state.”). 16 Given these principles, the immunity analysis turns on whether the conduct for 17 which Miller is being sued is properly classified as prosecutorial activity (which triggers 18 absolute immunity) or investigative and administrative activity (which does not). The FAC 19 alleges that Miller (1) withheld evidence that an attorney who had once lodged a complaint 20 against him subsequently withdrew the complaint (Doc. 31 ¶¶ 8-12 & p. 14) and (2) 21 included “knowingly false allegations” in the bar complaint she filed against him in 2016 22 (id. ¶¶ 13-14). Fitzhugh asserts, in conclusory fashion, that such conduct constitutes 23 “investigative and administrative conduct” and cites Kalina v. Fletcher, 522 U.S. 118 24 (1997), for the proposition that prosecutors do not have absolute immunity to commit 25 perjury. (Doc. 23 at 15.) 26 These arguments are unavailing. In Kalina, the prosecutor commenced a criminal 27 proceeding by filing an information with a motion for an arrest warrant, both of which were 28 unsworn pleadings. Id. at 120-21. She also provided an affidavit in which she personally 1 vouched, under penalty of perjury, for the truth of the facts supporting the arrest warrant. 2 Id. at 121. The Supreme Court found that absolute immunity attached to the filing of the 3 information and the motion for the arrest warrant but stated that “testifying about facts is 4 the function of the witness, not the lawyer,” so the prosecutor was not afforded absolute 5 immunity regarding the affidavit. Id. at 129-30. 6 Here, Miller’s filing of the bar complaint in 2016 is similar to the Kalina 7 prosecutor’s filing of an information. She did not testify under oath regarding any of the 8 facts underlying the complaint and simply filed it to initiate the disciplinary proceedings. 9 (Doc. 13-2 at 19 [signature page, with no suggestion that Miller signed under penalty of 10 perjury].) Kalina supports, rather than undermines, the conclusion that absolute immunity 11 attaches to such conduct. Cf. Wu v. State Bar of Cal., 935 F. Supp. 2d 315, 319-20 (C.D. 12 Cal. 1997) (state bar prosecutors were entitled to absolute immunity, in lawsuit alleging 13 they brought improper charges against plaintiff due to racial animus, because “what Wu is 14 challenging are the decisions of [the bar prosecutors] to prosecute his cases, to settle his 15 first case, and not to prosecute other attorneys. [The bar prosecutors] should enjoy absolute 16 immunity from monetary liability for their performance of these essential prosecutorial 17 functions.”). 18 As for the FAC’s allegations concerning Miller’s alleged withholding of evidence, 19 it is unclear whether those allegations have any relation to the bar prosecution,8 but even 20 assuming they do, courts have held that a prosecutor’s decision to withhold evidence by 21 failing to disclose it—which is different from affirmatively destroying evidence—falls 22 within the ambit of absolute immunity. Broam v. Bogan, 320 F.3d 1023, 1030 (9th Cir. 23 2003) (“A prosecutor’s decision not to . . . turn over exculpatory material before trial, 24 during trial, or after conviction is . . . an exercise of the prosecutorial function and entitles 25 the prosecutor to absolute immunity from a civil suit for damages.”) (citations omitted). 26 8 If not, it is unclear how those allegations could give rise to liability. The alleged 27 withholding of evidence occurred in or before 2013 (Doc. 31 at 14), placing it outside the statute of limitations if proffered as a standalone basis for § 1983 liability. TwoRivers v. 28 Lewis, 174 F.3d 987, 991 (9th Cir. 1999) (in general, the statute of limitations for § 1983 claims in Arizona is two years) 1 Accordingly, Miller is entitled to absolute immunity with regard to Count Three of 2 the FAC. 3 C. Remaining State-Law Claims 4 For the reasons stated above, all of Fitzhugh’s federal claims—his § 1983 claim in 5 Miller in Count Three and his § 1983 claim against the SBA in Count Four—are subject to 6 dismissal. Fitzhugh has not requested leave to amend these claims and the Court declines 7 to grant such leave sua sponte because amendment would be futile—Fitzhugh’s federal 8 claims fail due to well-established immunity doctrines, not due to a failure to allege facts 9 with sufficient particularity. AmerisourceBergen Corp. v. Dialysist W., Inc., 465 F.3d 946, 10 951 (9th Cir. 2006) (although leave to amend should be freely granted, “a district court 11 need not grant leave to amend where the amendment . . . is futile”). 12 Still remaining are Fitzhugh’s state-law claims against Miller in Counts One and 13 Two.9 In most instances, when “all federal-law claims are eliminated before trial, the 14 balance of factors to be considered under the pendent jurisdiction doctrine—judicial 15 economy, convenience, fairness, and comity—will point toward declining to exercise 16 jurisdiction over the remaining state-law claims.” Carnegie-Mellon Univ. v. Cohill, 484 17 U.S. 343, 350 n.7 (1988); see also 28 U.S.C. § 1367(c)(3) (“The district courts may decline 18 to exercise supplemental jurisdiction over a [pendent state-law claim] if . . . the district 19 court has dismissed all claims over which it has original jurisdiction.”). 20 The Cohill factors weigh against retaining jurisdiction over Fitzhugh’s state-law 21 claims. This case is less than a year old and no trial date has been set, so declining 22 jurisdiction will cause minimal duplication of effort. Further, considerations of fairness, 23 comity, and federalism are best served by allowing Arizona courts to address state-law 24 claims. United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966) (“Needless 25 decisions of state law should be avoided both as a matter of comity and to promote justice 26 between the parties, by procuring for them a surer-footed reading of applicable law.”). 27 9 Although Count Four also appears to be asserting a state-law claim against the SBA, 28 that claim is subject to dismissal based on the SBA’s entitlement to Eleventh Amendment immunity. Thus, the Court will decline to exercise jurisdiction over the remaining state-law claims. 2|| Ill. Motion To File A Surreply 3 “TSjur-replies are highly disfavored and permitted only in extraordinary circumstances.” Finley v. Maricopa Cty. Sheriff's Office, 2016 WL 777700, *1 n.1 (D. 5|| Ariz. 2016). “Although the Court may in its discretion allow the filing of a surreply, this 6|| discretion should be exercised in favor of allowing a surreply only where a valid reason for || such additional briefing exists, such as where the movant raises new arguments in its reply || brief.” Hill v. England, 2005 WL 3031136, *1 (B.D. Cal. 2005). 9 Fitzhugh argues a surreply is necessary because Defendants raised new matters in their reply. (Doc. 28 at 1.) This is inaccurate. Defendants did not raise new matters in 11 || their reply—they merely pointed out cases and arguments raised in their motion that || Plaintiff failed to address in his response. No valid reason exists for additional briefing. 13 Accordingly, IT IS ORDERED that: 14 (1) Defendants’ request for judicial notice (Doc. 13) is granted. 15 (2) Defendants’ motion to dismiss (Doc. 14) is granted. 16 (3) Fitzhugh’s motion for leave to file a sur-reply (Doc. 28) is denied. 17 (4) The Clerk of Court shall enter judgment accordingly and terminate this 18 || action. 19 Dated this Ist day of April, 2020. 20 1 _

23 United States District Judge 24 25 26 27 28

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