John Scannell v. Washington State Bar Assn , 671 F. App'x 529 ( 2016 )

FILED
NOT FOR PUBLICATION
DEC 13 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN R. SCANNELL, Esquire, No. 14-35582
Plaintiff-Appellant, D.C. No. 2:12-cv-00683-SJO
v.
MEMORANDUM*
WASHINGTON STATE BAR
ASSOCIATION; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
S. James Otero, District Judge, Presiding
Submitted December 9, 2016**
Seattle, Washington
Before: TALLMAN and CHRISTEN, Circuit Judges, and ENGLAND,*** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Morrison C. England, Jr., United States District Judge
for the Eastern District of California, sitting by designation.
John Scannell brings this lawsuit against members of the Washington State
Bar Association and state supreme court justices and clerks involved in his state
disbarment proceedings. He alleges that the defendants conspired to deprive him
of due process rights and asserts: (1) claims under 42 U.S.C. § 1983; (2) claims
under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-
1968 (RICO); (3) claims under the Sherman Antitrust Act, 15 U.S.C. §§ 1-7(Sherman Act); and (4) various state law claims. The district court dismissed all
claims and denied leave to file a fourth amended complaint. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
1. The district court lacks subject matter jurisdiction to decide Scannell’s
claims for relief under § 1983, RICO, and Washington state law. His claims for
individual relief constitute a forbidden de facto appeal of the Washington Supreme
Court’s decision to disbar him. See D.C. Court of Appeals v. Feldman, 460 U.S.
462 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); see also Noel v.
Hall, 341 F.3d 1148, 1163 (9th Cir. 2003) (“It is a forbidden de facto appeal under
Rooker-Feldman when the plaintiff in federal district court complains of a legal
wrong allegedly committed by the state court, and seeks relief from the judgment
of that court.”).
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The district court similarly lacks subject matter jurisdiction over Scannell’s
more general claims concerning Washington court rules governing the conduct of
lawyers. These claims are “inextricably intertwined” with his forbidden de facto
appeal because he primarily asks the district court to examine the rules as applied
to him. See Noel, 341 F.3d at 1158; see also Cooper v. Ramos, 704 F.3d 772, 780
(9th Cir. 2012) (holding that the Rooker-Feldman doctrine barred plaintiff’s claim
where he “explicitly attack[ed] . . . the state court’s application in his specific case
of the statutory factors governing entitlement to DNA testing”).
2. The state action doctrine bars Scannell’s antitrust claims. Under the
state action doctrine, “the Sherman Act does not apply to certain categories of state
action. . . . [O]ne of these categories is the regulation of attorneys by a state
supreme court.” Mothershed v. Justices of Supreme Court, 410 F.3d 602, 608 (9th
Cir. 2005), as amended on denial of reh’g (July 21, 2005). In suits against bar
associations and members of the associations’ governing bodies, the state supreme
court is the real party in interest if it “retain[s] the sole authority” to review the
action in question. See Hoover v. Ronwin, 466 U.S. 558, 573 (1984).
The conduct of which Scannell complains relates to the enforcement of the
rules of professional conduct. The Washington Supreme Court promulgates the
rules of professional conduct and retains ultimate authority to enforce them. See
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Wash. Rule for Enforcement of Lawyer Conduct 2.1 (Oct. 1, 2002). As in Hoover,
“[t]he action at issue here, whether anticompetitive or not, clearly was that of the
[Washington] Supreme Court” and does not give rise to Sherman Act liability. See
Hoover, 466 U.S. at 574.
3. The district court did not abuse its discretion by denying Scannell
leave to file a fourth amended complaint based on undue delay and prejudice.
Under the Federal Rules of Civil Procedure, leave to amend “shall be freely given
when justice so requires.” Bowles v. Reade, 198 F.3d 752, 757 (9th Cir. 1999)
(citing Fed. R. Civ. P. 15(a)). “But a district court need not grant leave to amend
where the amendment: (1) prejudices the opposing party; (2) is sought in bad faith;
(3) produces an undue delay in litigation; or (4) is futile.” AmerisourceBergen
Corp. v. Dialysist W., Inc., 465 F.3d 946, 951 (9th Cir. 2006). Scannell unduly
delayed in seeking leave to amend his complaint because: (1) his proposed
complaint was based on previously available evidence; (2) he had three previous
chances to amend; and (3) he filed his motion five days before the close of
discovery. The late amendment would have unduly prejudiced defendants who had
already filed a motion for judgment on the pleadings.
Each party shall bear its own costs.
AFFIRMED.
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