Rose v. State of Utah

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS October 22, 2010

FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court

SUSAN ROSE,

Plaintiff-Appellant,

v. No. 10-4000
(D.C. No. 2:09-CV-00695-TC)
STATE OF UTAH; UTAH STATE (D. Utah)
BAR; CAROLYN COX; BARBARA
TOWNSEND; ARTHUR BERGER;
BILLY WALKER; JOYCE SMITH;
and other JOHN AND JANE DOES as
yet to be identified, named jointly and
severally, officially and personally,

Defendants-Appellees.

ORDER AND JUDGMENT *

Before TYMKOVICH, BALDOCK, and HOLMES, Circuit Judges.

Susan Rose, an attorney representing herself, appeals the district court’s

order dismissing her complaint asserting that the Utah State Bar has no

*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
jurisdiction to prosecute attorney disciplinary proceedings against her. She

sought declaratory and injunctive relief, as well as monetary damages against the

State of Utah, the Utah State Bar and its officials, and two private attorneys. She

also appeals the district court’s order declining to recuse from the case. We

dismiss the appeal in part for lack of jurisdiction, and affirm in part.

I. BACKGROUND

The Utah State Bar brought disciplinary proceedings in a Utah state court

against Ms. Rose, an attorney licensed to practice in Utah. Ms. Rose then filed

the underlying lawsuit against the State of Utah, the Utah State Bar, three Bar

officials (Townsend, Burger, and Walker), and two private attorneys (Smith and

Cox) who were opposing counsel in cases involving Ms. Rose and who had filed

informal complaints with the Bar against her. Pursuant to the attorney-grievance

procedure under the Utah Rules of Professional Conduct and the Utah Rules

Governing the Utah State Bar (collectively, the “Utah Rules”), an initial screening

process resulted in a formal complaint against Ms. Rose. The next step is for the

Utah state court to conduct a bench trial, from which either side may appeal to the

Utah Supreme Court. At the time of the district court’s order now under review,

no trial had been held.

In its formal complaint against Ms. Rose, the Utah State Bar alleged that

she had violated various Rules of Professional Conduct in two cases, one filed in

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federal court, and the other in state court. 1 In her federal complaint, Ms. Rose

requested declaratory and injunctive relief to prevent the Utah State Bar from

imposing any professional discipline against her. She also sought damages based

on federal claims of free speech, freedom to petition, due process, equal

protection, and illegal takings. In addition, she requested damages based on state

law claims for breach of contract, conversion, conspiracy, and intentional

infliction of emotional distress. Ms. Rose based her federal claims on the

Supremacy Clause, U.S. Const. Art. VI, cl. 2, as well as the First, Fifth, Ninth,

and Fourteenth Amendments. She specifically rejected any suggestion that her

claims were based on 42 U.S.C. § 1983.

In a thorough order, the district court dismissed Ms. Rose’s case for failure

to state a claim for relief, pursuant to Fed. R. Civ. P. 12(b)(6), holding (1) the

State of Utah, the Utah State Bar, and the Bar officials in their official capacities

were entitled to Eleventh Amendment immunity; (2) the federal court was

required to abstain from reaching claims raised against the State of Utah, the Utah

State Bar, and the Bar officials in their individual and official capacities, pursuant

1
Both cases had a connection to a Navajo court. In the federal case,
Ms. Rose’s clients sought “enforcement of several preliminary injunction orders
issued by a court of the Navajo Nation.” MacArthur v. San Juan Cnty., 497 F.3d
1057, 1060 (10th Cir. 2007). The state case was a petition for grandparent
visitation with a Navajo child who was the subject of a Navajo court’s
parental-rights order. Aplt. Addendum at 49-55. To the extent Ms. Rose claims
the Utah State Bar was without jurisdiction to discipline her for her professional
conduct in the Navajo courts, our ruling is the same as for her federal-court
arguments.

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to Younger v. Harris, 401 U.S. 37 (1971); (3) even if Ms. Rose’s claims were

construed as invoking federal jurisdiction under § 1983, the State defendants were

not “persons” under the statute and the private-attorney defendants were not state

actors; (4) the takings claims were not ripe; and (5) Ms. Rose failed to allege

sufficient facts to survive dismissal of her state law claims.

On appeal, Ms. Rose argues that the district court erred in dismissing her

case because the court did not construe as true the facts alleged in the complaint,

the court considered matters outside the complaint, and the court did not hold a

hearing. In addition, Ms. Rose maintains that the Utah State Bar lacks

jurisdiction to regulate her professional activity in federal court, invoking the

Supremacy Clause and rejecting § 1983, and asserting error in the district court’s

failure to conduct a “‘Supremacy Clause’ federal pre emption analysis,” Aplt.

Opening Br. at ii, 33. She pursues her claims for damages against Ms. Cox, but

has waived her claims against Ms. Smith. 2 Lastly, she contends that the district

court erred in denying her motion to recuse based on the appearance of

impartiality.

2
In addition to the named defendants, the complaint caption named as
defendants “John and Jane Does as yet to be identified,” but Ms. Rose does not
pursue claims against any unnamed defendants. Courts generally permit a
plaintiff to use unnamed defendants, but the plaintiff must “provide[] an adequate
description of some kind which is sufficient to identify the person involved so
process eventually can be served.” Roper v. Grayson, 81 F.3d 124, 126 (10th Cir.
1996). Given that the unnamed defendants were merely included in the caption of
the amended complaint, we do not consider them.

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 II. ANALYSIS

A. Standards of Review

We review de novo the district court’s Rule 12(b)(6) dismissal. Christy

Sports, LLC v. Deer Valley Resort Co., 555 F.3d 1188, 1191 (10th Cir. 2009).

The de novo standard also applies to the district court’s rulings on Eleventh

Amendment immunity and Younger abstention. Steadfast Ins. Co. v. Agric. Ins.

Co., 507 F.3d 1250, 1253 (10th Cir. 2007) (“Eleventh Amendment immunity is a

question of federal law and our review is de novo.”); Brown ex rel. Brown v. Day,

555 F.3d 882, 887 (10th Cir. 2009) (“We review de novo a district court’s

decision to abstain pursuant to Younger.”).

“To survive a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to ‘state a claim for relief that is plausible on its face.’”

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). “[W]e assume the factual allegations are

true and ask whether it is plausible that the plaintiff is entitled to relief.”

Gallagher v. Shelton, 587 F.3d 1063, 1068 (10th Cir. 2009). “[T]he tenet that a

court must accept as true all of the allegations contained in a complaint is

inapplicable to legal conclusions. Threadbare recitals of the elements of a cause

of action, supported by mere conclusory statements, do not suffice.” Iqbal,

129 S. Ct. at 1949.

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 B. Assertions of Fact

Ms. Rose claims dismissal was improper because the court failed to

construe as true the facts alleged in the complaint, considered matters outside the

complaint, and failed to hold a hearing. Ms. Rose has not identified any facts she

asserts the district court ignored, but instead has supplied only arguments and

conclusory allegations. See Aplt. Opening Br. at 27-30. She contends that her

district court filing, which she refers to as her “Twombly chart,” e.g., id. at 28,

demonstrated that her factual assertions were sufficient to resist dismissal under

Rule 12(b)(6). But the “Twombly chart,” like Ms. Rose’s appellate briefs,

contains primarily conclusory statements and arguments. Aplt. Addendum at

108-11; 118-26. “[W]e need not accept [Ms. Rose’s] conclusory allegations as

true.” S. Disposal, Inc. v. Texas Waste Mgmt., 161 F.3d 1259, 1262 (10th Cir.

1998); accord Iqbal, 129 S. Ct. at 1949. Moreover, “counsel may not overcome

pleading deficiencies with arguments.” Bauchman ex. rel Bauchman v. W. High

Sch., 132 F.3d 542, 550 (10th Cir. 1997).

Ms. Rose’s claim that the district court improperly considered matters

outside the complaint is based on the court’s reference to an earlier federal court

case Ms. Rose filed, which was dismissed. 3 This was not a fact pertaining to the

merits of the case, however, and reference to it was merely background

3
Ms. Rose also objects to the district court’s reference to attorney-grievance
complaint against her. As this forms the basis of her lawsuit, reference to the
complaint was not error.

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information not integral to the court’s analysis or conclusion. Similarly, the

district court did not abuse its discretion in granting dismissal without a hearing

where Ms. Rose does not assert that she requested one, and where the contested

matters were legal in nature. See Shaw v. AAA Eng’rg & Drafting, Inc., 213 F.3d

538, 545 (10th Cir. 2000). Ms. Rose’s reliance on In re Green, 369 U.S. 689,

692-93 (1962), to support her argument that a hearing was required is misplaced.

See, e.g., Aplt. Reply Br. at 8. In re Green concerned the due-process hearing

requirement for an attorney who “ha[d] been held in contempt of a state court and

sentenced to jail and fined.” In re Green, 369 U.S. at 689, 693. Nothing in this

case suggests that Ms. Rose has been threatened with contempt of any court.

C. Younger Abstention

Ms. Rose asserts that the Utah State Bar has no authority to discipline her

for alleged misconduct occurring in federal court, where the federal court did not

impose attorney discipline. The district court found that it was required to abstain

under Younger and dismissed Ms. Rose’s claims against the Utah State Bar and its

officials.

The Supreme Court has addressed circumstances under which federal courts

should abstain from state attorney-discipline proceedings. The Court noted that

“[w]here vital state interests are involved, a federal court should abstain unless

state law clearly bars the interposition of the constitutional claims.” Middlesex

Cnty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982)

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(quotation omitted). The Court then identified a three-part inquiry to determine

“whether the state proceedings afford an adequate opportunity to raise the

constitutional claims.” Id. (quotation omitted). The inquiry first asks whether

“state bar disciplinary hearings within the constitutionally prescribed jurisdiction

of the State Supreme Court constitute an ongoing state judicial proceeding.” Id.

The next question is whether “the proceedings implicate important state interests;

[and finally,] is there an adequate opportunity in the state proceedings to raise

constitutional challenges.” Id. If these criteria are met, the federal court should

abstain unless there is a “showing of bad faith, harassment, or some other

extraordinary circumstance that would make abstention inappropriate.” Id. at

435.

The district court determined that the Middlesex criteria were satisfied and

no extraordinary circumstance was present to make abstention inappropriate.

Addressing the first criterion, the district court found that the Utah Constitution

granted power to govern the practice of law to the Utah Supreme Court, see Utah

Const., art. VIII, § 4, and the proceedings against Ms. Rose pending in a Utah

state district court were judicial in nature, with an appeal by either side to be

heard by the Utah Supreme Court. Aplt. App. at 299-300. Next, the court held

that the regulation of attorneys was an important state interest. Id. at 300.

Finally, the court applied the presumption that the Utah state district court, in

which the disciplinary proceedings were pending, was an adequate forum for

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Ms. Rose to raise her constitutional and state law challenges because the state

district courts are empowered to hear such challenges, and the Utah Supreme

Court may hear an appeal from the state courts. Id. Accordingly, having found

that the Middlesex criteria were met and no extraordinary circumstances to

prevent abstention were shown, the district court held that abstention was

non-discretionary. Id. at 302 (citing Crown Point I, LLC v. Intermountain Rural

Elec. Ass’n, 319 F.3d 1211, 1215 (10th Cir. 2003)).

Ms. Rose contends that the Utah state court does not provide an adequate

forum to challenge the constitutionality of the Utah Rules governing attorney

discipline, because she tried twice unsuccessfully to obtain a stay of the grievance

proceeding from the Utah Supreme Court. But she has provided no authority

requiring a Utah court to address her claims in an action other than the pending

grievance proceeding. 4

Based on our de novo review of the district court’s rulings, we affirm the

decision to abstain from the state disciplinary proceedings for the same reasons

given by the district court. Our determination that the district court properly

4
Ms. Rose asserts error in the district court’s reliance as persuasive authority
on Canatella v. California, 404 F.3d 1106, 1110 (9th Cir. 2005), claiming that the
case stands for the proposition that a state bar may rely on misconduct in a federal
court to discipline an attorney only if the federal court has previously imposed
discipline on the attorney. Aplt. Opening Br. at 18 (citing the earlier case of
Canatella v. California, 304 F.3d 843, 847 (9th Cir. 2002)). Neither case holds
that a federal court must impose discipline before a state bar can bring a
disciplinary action against an attorney based on her actions in a federal court.

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abstained obviates Ms. Rose’s argument that the district court erred in not

addressing her Supremacy Clause “Constitutional Design” argument.

D. Claims Waived on Appeal

As noted, the district court held that the State of Utah, the Utah State Bar,

and the Bar officials in their official capacity were entitled to Eleventh

Amendment immunity. Ms. Rose’s appellate briefs do not contain a cogent

argument challenging the district court’s ruling. Issues not argued to the

appellate court are deemed waived. Ruiz v. McDonnell, 299 F.3d 1173, 1182 n.4

(10th Cir. 2002).

Similarly, Ms. Rose has presented no appellate argument that the district

court erred in its rulings on her pendent claims under Utah state law for

conversion, conspiracy, or intentional infliction of emotional distress. In

addition, her appellate briefs do not contain any legal argument concerning

Ms. Smith, and Ms. Smith was not named in the notice of appeal, Aplt. App.

at 309. Therefore, we do not review the district court’s rulings on the Eleventh

Amendment or the state law claims. All claims against Ms. Smith are deemed

waived.

E. Federal Claims for Declaratory and Injunctive Relief and Damages

Ms. Rose sought declaratory and injunctive relief and damages under the

Supremacy Clause. She has rejected § 1983 as a source of subject matter

jurisdiction, electing instead to rely on the Supremacy Clause, as well as

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28 U.S.C. §§ 1331 and 1343. “The party invoking federal jurisdiction bears the

burden of proof.” Sac & Fox Nation of Okla. v. Cuomo, 193 F.3d 1162, 1165

(10th Cir. 1999) (quotation and alteration omitted).

Ms. Rose apparently relies for her argument that federal jurisdiction is

provided by the Supremacy Clause on Wilderness Society v. Kane County,

581 F.3d 1198 (10th Cir. 2009), reh’g en banc granted, 595 F.3d 1119 (10th Cir.

2010). But as the district court explained, Wilderness Society involved a claim

that a state law was preempted by a federal statute, 581 F.3d at 1205, and

Ms. Rose has identified no “federal statute that remotely suggests that federal

courts have exclusive jurisdiction to regulate the practice of law in the State of

Utah (or any other state for that matter),” Aplt. App. at 302 n.9.

Ms. Rose’s reliance on sections 1331 and 1343 for federal jurisdiction is

equally unavailing. Section 1331 “confers jurisdiction only where a federal

question is otherwise at issue; it does not create federal jurisdiction.” Ellis v.

Cassidy, 625 F.2d 227, 229 (9th Cir. 1980). Furthermore, Ҥ 1343 does not create

an independent basis for federal jurisdiction, but only serves to confer jurisdiction

where a federal cause of action is provided by one of the substantive sections of

the Civil Rights Act.” Id. Ms. Rose has incorrectly cited Mt. Healthy City Board

of Education v. Doyle, 429 U.S. 274, 279 (1977), as supporting her contention

that sections 1331 and 1343 confer jurisdiction. Aplt. Opening Br. at 5 n.5. On

the contrary, in Mt. Healthy the Court declined to decide whether the respondent’s

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action filed under § 1331 was “limited by the restrictions of § 1983.”

Mt. Healthy, 429 U.S. at 279. Indeed, Mt. Healthy has been described as

distinguishing between § 1331’s “catchall federal-question provision” and

“jurisdiction under 28 U.S.C. § 1343, which requires not only that the technical

requirements of jurisdiction be met but that suit against the parties named as

defendants be authorized under the cognate provisions of 42 U.S.C. § 1983.”

Symm v. United States, 439 U.S. 1105, 1108 (1979) (Rehnquist, J., dissenting

from denial of certiorari) (emphasis added); see also Examining Bd. of Eng’rs,

Architects & Surveyors v. Flores de Otero, 426 U.S. 572, 583 (1976) (noting that

28 U.S.C. § 1343 and 42 U.S.C. § 1983 “were meant to be, and are,

complementary”). In sum, because the Supremacy Clause does not provide

Ms. Rose with a private right of action, she cannot rely on § 1331 for jurisdiction.

And she has specifically stated that none of her claims are brought under § 1983,

so § 1343 does not confer jurisdiction. Accordingly, because federal subject

matter jurisdiction is lacking, we dismiss Ms. Rose’s appeal concerning her

federal claims for declaratory and injunctive relief and damages.

III. ORDER DENYING RECUSAL

Next we address Ms. Rose’s claim that the district court erred in denying

her motion to recuse due to the appearance of impartiality, pursuant to 28 U.S.C.

§ 455(a). Ms. Rose asserts that the district court improperly failed to recognize

the merit to her arguments, dismissed her prior federal case, denied her motions

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for a temporary restraining order and mediation, and dismissed the case. By these

arguments, Ms. Rose asserts that the district judge was biased based solely on its

unfavorable rulings. But adverse rulings cannot alone provide grounds for

disqualification. See Bixler v. Foster, 596 F.3d 751, 762 (10th Cir. 2010).

Accordingly, we find no error in the district court’s order denying recusal.

IV. MOTION FOR SANCTIONS

Defendant Cox has filed a separate motion for sanctions against Ms. Rose

for filing a frivolous appeal. She also seeks an injunction preventing Ms. Rose

from pursuing this case or any other litigation related to the Utah State Bar’s

pending disciplinary proceedings against her. Ms. Cox contends that (1) the

appeal is objectively frivolous; (2) Ms. Rose’s briefs are of very poor quality,

even though she is a lawyer; (3) the “Argument” section of her appellate brief is

vexatious and frivolous because she argues that the district court failed to take her

pleaded facts as true, but then identifies no such facts; (4) she made legal

arguments unsupported by the cited legal citations; and (5) she represented in her

brief that the federal judge in the litigation where she and Ms. Cox were opposing

counsel cited favorably to her work when, in fact, the judge was highly critical of

it.

Ms. Rose has responded, asserting that sanctions are inappropriate because

she filed the appeal in good faith and because sanctions were not imposed against

her clients in the MacArthur case in which she and Ms. Cox were opposing

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counsel. See MacArthur v. San Juan Cnty., Utah Federal District Court,

case No. 2:00CV584. Ms. Rose also reargues the merits of her appeal.

A court of appeals is authorized to “award just damages and single or

double costs to the appellee” if it determines that an appeal is frivolous.

Fed. R. App. P. 38; see also Braley v. Campbell, 832 F.2d 1504, 1511 (10th Cir.

1987) (en banc) (holding “Rule 38 alone permits sanctions against attorneys for

taking a truly frivolous appeal”). “An appeal is frivolous when the result is

obvious, or the appellant’s arguments of error are wholly without merit.” Braley,

832 F.2d at 1510 (quotation omitted). Subjective good faith is irrelevant;

sanctions are appropriate “for conduct that, viewed objectively, manifests either

intentional or reckless disregard of the attorney’s duties to the court.”

Id. at 1512.

Ms. Rose’s claims against Ms. Cox are based only on Ms. Cox’s transmittal

to the Utah State Bar of a court order authored by Judge Kimball criticizing

Ms. Rose’s professional performance. As discussed above, Ms. Rose has failed to

establish subject matter jurisdiction over her federal claims, and has waived her

state claims.

In addition, Ms. Rose’s briefs miscite legal authority, some examples of

which are noted above. She also argues the merits of the underlying disciplinary

action, which are not before this court and are irrelevant to the issues on appeal.

In the MacArthur case, rather than complimenting Ms. Rose on her legal work as

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she claims, the district court and this court were critical of her work. See

MacArthur v. San Juan Cnty., 497 F.3d 1057, 1064 n.2 (10th Cir. 2007) (noting

Ms. Rose’s “briefing in this case has in common many of the problems identified

with regard to the briefing in [495 F.3d 1157]”); MacArthur v. San Juan Cnty.,

495 F.3d 1157, 1161 & n.4, 1162 (10th Cir. 2007) (dismissing appeal as

frivolous; noting Ms. Rose’s briefs violated appellate rules and were “replete with

errors of spelling and grammar, and the prose [was] often incomprehensible”);

MacArthur v. San Juan Cnty., Utah Federal District Court, case No. 2:00CV584,

Doc. 219, at 5 5 (Judge Kimball’s September 19, 2001, recusal order noting,

among other criticisms of Ms. Rose’s representation, that “Plaintiffs have taken

for granted the extreme patience that this court has demonstrated in

tolerating . . . Plaintiffs’ often incomprehensible pleadings and memoranda”).

Furthermore, the briefs in this appeal are rife with incomprehensible prose.

See, e.g., Aplt. Opening Br. at 30 (“[The abstention cases of Younger and

Middlesex] both recognize the Court’s reliance on the Bars assertion of a ‘state’

court ‘de novo’ review cannot compensate for Due process denials at any point

along the long process of attorney discipline.” [sic, generally]); Aplt. Reply Br.

at 17 (“Congress in the 1992 Senate- ratified United Nations International

5
Judge Kimball’s recusal order was issued in the MacArthur case and forms
the basis of one of the grievance counts against Ms. Rose. This court has
discretion to access documents not included in the parties’ appendices on the
district court’s electronic filing system. See Burnett v. Sw. Bell Tel., L.P.,
555 F.3d 906, 909 (10th Cir. 2009).

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Covenant on Civil and Political Rights, that secures to all U.S. citizens their Bill

of Rights, through the all the [sic] various civil rights acts that execute this Treaty

domestically, makes the Bill of Rights Article VI Treaty law superceding all state

and other Constitutional provisions.”).

“Courts are in no way obligated to tolerate arguments that thoroughly defy

common sense.” Charczuk v. Commissioner, 771 F.2d 471, 475 (10th Cir. 1985).

“We have repeatedly expressed our concern with the unnecessary burdens, both

on the courts and on those who petition them for justice, that result from

unreasonable, irresponsible and vexatious conduct of attorneys as well as parties.”

Braley, 832 F.2d at 1512.

Before imposing sanctions, the appellant must be afforded due process.

“The due process requirements fall into two categories: (1) specificity of

findings, to facilitate response and review, and (2) notice and opportunity to be

heard.” Id. at 1513. The specificity of findings is met when an appellate court

addresses the merits of the appeal. See id. at 1514. The notice requirement is

satisfied “if a party has already made a motion . . . that sanctions be imposed, and

identified the party or counsel it wants to be sanctioned.” Id. at 1515. The

opportunity to submit a response brief satisfies the opportunity to be heard. Id.

Accordingly, because these requirements were met here, both prongs of the due

process requirements are satisfied.

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 We determine that sanctions against Ms. Rose are appropriate for filing a

frivolous and vexatious appeal. Ms. Cox has not submitted an itemized statement

of her attorney fees incurred in this appeal. We find that “just damages” amount

to $5,000.00. See Rule 38; cf. Stafford v. United States, 208 F.3d 1177, 1179

(10th Cir. 2000) (awarding Rule 38 sanctions of $4,000.00, an amount less than

the full attorney fees requested). In addition, Ms. Cox is entitled to double costs,

pursuant to Rule 38. We do not, however, grant Ms. Cox’s request for an

injunction preventing Ms. Rose from pursuing this case or any other litigation

related to the Utah State Bar’s pending disciplinary proceedings against her.

V. CONCLUSION

Ms. Cox’s motion for sanctions is GRANTED in part, and Ms. Rose is

ordered to pay $5,000.00, plus double costs, to Ms. Cox. Ms. Cox’s request for

an injunction preventing Ms. Rose from pursuing this case or any other litigation

is DENIED.

Defendant Smith’s motion for a finding that she is not a party to this appeal

is GRANTED, given our determination that Ms. Rose has waived her claims

against Ms. Smith. The Bar Defendants’ motion to dismiss this appeal under

Fed. R. App. 27 and 10th Cir. R. 27.2 based on abstention is DENIED as moot.

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 Ms. Rose’s appeal of her federal claims for declaratory and injunctive relief

and damages is DISMISSED for lack of federal subject matter jurisdiction. In all

other respects, the judgment of the district court is AFFIRMED.

Entered for the Court

Bobby R. Baldock
Circuit Judge

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