UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
DONALD G. JONES,
Plaintiff,
v. Civil Action No. 09-0616 (JDB)
LOUISIANA STATE BAR
ASSOCIATION, et al.,
Defendants.
MEMORANDUM OPINION
Plaintiff, proceeding pro se, brings this action seeking recovery of $50 billion for the
victims of Hurricane Katrina and Hurricane Rita, $22 million in personal damages, and extensive
injunctive relief against attorneys at the law firm of Jones & Walker and other persons involved
in hurricane relief efforts and actions affecting plaintiff's Louisiana properties. In total, plaintiff
has named over 120 defendants, most of whom reside in Louisiana. On April 21, 2009, the
Court issued an order observing that venue was likely improper in this district because only
seven defendants are alleged to reside in the District of Columbia, with the rest of the 100-plus
defendants located primarily in Louisiana, where most of the property is located and the relevant
events took place. See Order at 1-2 & n.2 , ECF #5. The Court further determined that threshold
defenses under Rule 12(b) of the Federal Rules of Civil Procedure should be considered with
respect to the seven District of Columbia defendants, for if they were dismissed, it would likely
be appropriate to transfer venue to an appropriate judicial district lying within Louisiana pursuant
to 28 U.S.C. § 1404. Id. Those motions have now been filed and fully briefed.1
The D.C. Bar moves to dismiss the complaint for lack of subject matter jurisdiction and
failure to state a claim upon which relief can be granted. The Jones Walker defendants in the
District of Columbia -- R. Christian Johnsen, Bill Cody, W. Russell King, Nancy Peele, Paul
Cambon and Norma Jane Sabiston ("Jones Walker DC Defendants") -- have separately moved to
dismiss on those same grounds.2 Plaintiff has responded to both motions and the matter is ripe
for resolution. For the reasons stated below, the Court will grant the motions to dismiss, and
then transfer the case to the Eastern District of Louisiana as to the remaining defendants.
BACKGROUND
The essence of plaintiff's prolix 143-page amended complaint with respect to the
defendants in the District of Columbia is that the Jones Walker attorneys misused their legal
licenses and violated numerous civil rights laws and the Constitution when they lobbied
Congress and other governmental agencies to secure various types of relief for their clients in the
wake of Hurricane Katrina and Hurricane Rita in 2005. See Am. Compl. at 79-92. As plaintiff
puts it:
[the Jones Walker Defendants] misused their licenses when they lobbied Congress
to pass legislation . . . which sent over $200 billion dollars of US HUD, DOC,
CORPS OF ENGINEERS, FEMA, and such other well intended federal
assistance, which has not restored plaintiff et al Communities . . . , but which in
1
For ease of reference, the Court will refer to defendants' memoranda in support of their
motions to dismiss as "D.C. Bar Mem." and "Jones Walker Mem.," respectively. Plaintiff has
filed several memoranda with the Court, which will be referred to by an abbreviated title and
ECF document number.
2
Cody and Sabiston deny plaintiff's contention that they are employed by the Jones
Walker law firm, but state they will treat plaintiff's factual allegations as true for purposes of the
motion to dismiss. See Jones Walker Mem. at 1 n.2. They also note that they have not been
served with process, but have joined in the Jones Walker motion to dismiss in the interest of
judicial economy. Id.
2
fact has created industry . . . in areas which were not the true Congressional
intended recipients of these billions of dollars of federal funds and programs. . . .
. . . The [Jones Walker] Defendants misused their licenses when they built an
interlocking fabric of experience, relationships, and expertise in getting Congress,
and other State legislatures to approve legislation to appropriate funds under the
disguise that it is in the "General Welfare of the Public," but in fact it has been
designed to end up in the hands of those whom the Federal Law did not prescribe
it for.
See Am. Compl. at 83, 87 (emphasis in original). Plaintiff recasts this allegation in numerous
ways throughout the Amended Complaint (id. at 79-92), but overall to the same effect -- that the
Jones Walker DC Defendants have served only the interests of their private business clients and
failed to serve the public welfare, in particular, the "true" victims of the hurricanes, i.e., "the Low
Income, the Handicapped, the less fortunate American people, whom were portrayed in their dire
plights at the Superdome, and the Convention Center, in the aftermath of hurricanes Katrina and
Rita." See Am. Compl. at 86.
Because the Jones Walker DC Defendants are allegedly attorneys licensed to practice law
in the District, plaintiff also has sued the District of Columbia Bar ("D.C. Bar") based on his
belief that the D.C. Bar is responsible for licensing and disciplining attorneys and his belief that
the D.C. Bar has failed to fulfill its duties with respect to the Jones Walker attorneys. See Am.
Compl. at 12, 52. It bears noting at the outset that the D.C. Bar is not the entity that "licenses"
attorneys -- that duty falls to the District of Columbia Court of Appeals. D.C. Code § 11-2501.
Rather, the D.C. Bar is the "official arm" of the District of Columbia Court of Appeals that
manages those attorneys who have been admitted by the Court of Appeals to the practice of
law -- a matter of which this Court takes judicial notice. See Rules Governing the District of
Columbia Bar, Preamble & Rule 1.
In any event, plaintiff alleges that the D.C. Bar has "fail[ed] to address numerous
3
complaints of fraud, unethical behavior, obvious conflicts of interest, falsifying of court
documents, and . . . continu[ed] to renew the licenses of these attorneys, in spite of obvious
evidence that they warrant disbarment, and/or suspension . . . ." Am. Compl. at 12. Plaintiff thus
seeks a judicial order requiring the D.C. Bar (and all other state licensing boards) to "review[]
and investigat[e]" the Jones Walker attorneys "to determine if suspension and/or disbarment is
warranted for these heinous violations." Id. at 92.
STANDARD OF REVIEW
"[I]n passing on a motion to dismiss, whether on the ground of lack of jurisdiction over
the subject matter or for failure to state a cause of action, the allegations of the complaint should
be construed favorably to the pleader." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see
Leatherman v. Tarrant Cty. Narcotics and Coordination Unit, 507 U.S. 163, 164 (1993); Phillips
v. Bureau of Prisons, 591 F.2d 966, 968 (D.C. Cir. 1979). Therefore, the factual allegations must
be presumed true, and plaintiff must be given every favorable inference that may be drawn from
the allegations of fact. Scheuer, 416 U.S. at 236; Sparrow v. United Air Lines, Inc., 216 F.3d
1111, 1113 (D.C. Cir. 2000). However, the Court need not accept as true "a legal conclusion
couched as a factual allegation," nor inferences that are unsupported by the facts set out in the
complaint. Trudeau v. Federal Trade Comm'n, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting
Papasan v. Allain, 478 U.S. 265, 286 (1986)).
Under Rule 12(b)(1), the party seeking to invoke the jurisdiction of a federal court --
plaintiff here -- bears the burden of establishing that the court has jurisdiction. See US Ecology,
Inc. v. U.S. Dep't of Interior, 231 F.3d 20, 24 (D.C. Cir. 2000); see also Grand Lodge of Fraternal
Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001) (a court has an "affirmative
obligation to ensure that it is acting within the scope of its jurisdictional authority."); Pitney
4
Bowes, Inc. v. United States Postal Serv., 27 F. Supp. 2d 15, 19 (D.D.C. 1998). "'[P]laintiff's
factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion'
than in resolving a 12(b)(6) motion for failure to state a claim." Grand Lodge, 185 F. Supp. 2d at
13-14 (quoting 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure §
1350 (2d ed. 1987)). Additionally, a court may consider material other than the allegations of the
complaint in determining whether it has jurisdiction to hear the case, as long as it still accepts the
factual allegations in the complaint as true. See Jerome Stevens Pharmaceuticals, Inc. v. FDA,
402 F.3d 1249, 1253-54 (D.C. Cir. 2005); EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d
621, 624-25 n.3 (D.C. Cir. 1997); Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C.
Cir.1992).
In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court is mindful that all
that the Federal Rules of Civil Procedure require of a complaint is that it contain "'a short and
plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957)); accord Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam). Although "detailed
factual allegations" are not necessary to withstand a Rule 12(b)(6) motion to dismiss, to provide
the "grounds" of "entitle[ment] to relief," a plaintiff must furnish "more than labels and
conclusions" or "a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S.
at 555-56; see also Papasan v. Allain, 478 U.S. 265, 286 (1986). "To survive a motion to
dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to
relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. ___, 129 S. Ct. 1937, 1949 (2009)
(quoting Twombly, 550 U.S. at 570); Atherton v. District of Columbia Office of the Mayor, 567
5
F.3d 672, 681 (D.C. Cir. 2009). A complaint is plausible on its face "when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged." Iqbal, 129 S. Ct. at 1949.
DISCUSSION
I. Standing
The D.C. Bar and the Jones Walker DC Defendants both move to dismiss the amended
complaint on the ground that plaintiff lacks standing to pursue the claims. It is well-settled that
there are three minimum elements necessary to establish standing:
First, the plaintiff must have suffered an "injury in fact" -- an invasion of a legally
protected interest which is (a) concrete and particularized, and (b) "actual or imminent,
not 'conjectural' or 'hypothetical.'" Second, there must be a causal connection between the
injury and the conduct complained of -- the injury has to be "fairly . . . trace[able] to the
challenged action of the defendant, and not . . . th[e] result [of] the independent action of
some third party not before the court." Third, it must be "likely," as opposed to merely
"speculative," that the injury will be "redressed by a favorable decision."
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (citations and footnote omitted);
accord Center for Law and Educ. v. Dep't of Educ., 396 F.3d 1152, 1157 (D.C. Cir. 2005).
Defendants contend that plaintiff fails to meet any of these elements, although focusing on
causation and redressability.3 See D.C. Bar Mem. at 4-7; Jones Walker Mem. at 14-19.
Defendants contend that plaintiff has not, and cannot, allege an injury "fairly traceable" to
3
Defendants suggest that plaintiff also has failed to establish injury-in-fact, but stress the
other two prongs for simplicity. See D.C. Bar Mem. at 5 n.2. The Court also has serious doubts
as to whether plaintiff has alleged injury-in-fact, in light of the generalized nature of his injury --
that is, the continued suffering of plaintiff and all others in the Louisiana area from an allegedly
inadequate and mismanaged federal and state response to Hurricanes Katrina and Rita. Injuries
which are "general rather than particularized are not sufficient to create standing." See Taitz v.
Obama, --- F. Supp. 2d ---, 2010 WL 1525030, at *2 (D.D.C. Apr. 14, 2010). Hence, a plaintiff
seeking "'relief that no more directly and tangibly benefits him than it does the public at large . . .
does not state an Article III case or controversy.'" Id. (quoting Lujan, 504 U.S. at 573-74).
However, the defendants have not briefed this aspect of standing, and hence the Court does not
rest its holding on the absence of injury-in-fact.
6
their conduct because his injury flows instead from the acts of third parties -- that is, Congress,
which enacted the legislation complained of, and other federal and local governmental bodies,
which allegedly implemented deficient, or otherwise mismanaged, hurricane relief programs The
Court agrees. Plaintiff simply fails to allege the manner in which the D.C. Bar or the Jones
Walker attorneys aggrieved plaintiff other than his wholly conclusory statement that their actions
deprived him of millions of dollars of hurricane relief monies that Congress and others should
have allocated more equitably. See Am. Compl. at 92 (conclusory allegation that he should be
awarded $22 million "personally for the damages caused by the Jones' defendants misuse of their
licenses" because they prevented plaintiff from benefitting from Congress's hurricane relief
legislation); Pl.'s Opp'n to Jones Walker Mot., ECF Doc. No. 35-1, at 21 (alleging that plaintiff
has "received not one dime" of Congressional hurricane relief monies). In other words, plaintiff's
injury -- his continued financial suffering after the devastation of the 2005 hurricanes -- is not
fairly traceable to the conduct of the D.C. Bar or the Jones Walker DC Defendants. Therefore,
plaintiff lacks standing to sue these defendants.
Plaintiff lacks standing to pursue his claims against the D.C. Bar for a second reason.
The primary relief sought against the D.C. Bar -- an order requiring an investigation of the Jones
Walker attorneys -- would not redress any alleged injury plaintiff has suffered. As the D.C. Bar
points out, such an order would only relate to potentially prospective discipline against the Jones
Walker attorneys and would not ensure that plaintiff would receive any monetary damages from
them. See D.C. Bar Mem. at 7. Whether disciplinary action might result in the payment of
damages "can, at best, be termed only as speculative." See Linda R.S. v. Richard D., 410 U.S.
614, 618 (1973) (holding that "a citizen lacks standing to contest the policies of the prosecuting
authority when he himself is neither prosecuted nor threatened with prosecution," and noting the
7
speculative nature of any direct recovery by the citizen). In other words, plaintiff's injury is not
redressable by a favorable decision against the D.C. Bar, and hence, plaintiff lacks standing to
sue the D.C. Bar for this additional reason.
II. The Jones Walker DC Defendants
Even if plaintiff had standing to sue the Jones Walker DC attorneys or the D.C. Bar, his
complaint should be dismissed for failure to state a claim upon which relief can be granted. The
Jones Walker DC Defendants move to dismiss plaintiff's complaint on the ground that the
governmental petitioning of which plaintiff complains is immune from liability under the Noerr-
Pennington doctrine. See Jones Walker Mem. at 19-21. Under the Noerr-Pennington doctrine,
those who "petition[] the Government for redress of grievances, whether by efforts to influence
legislative or executive action or by seeking redress in court, [are] immune from liability" for
such activity under the First Amendment. Covad Commc'ns Co. v. Bell Atlantic Corp., 398 F.3d
666, 677 (D.C. Cir. 2005) (citing E.R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365
U.S. 127, 136 (1961), and Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510
(1972)). An exception to that immunity is recognized where the defendants' activity is a "sham"
for "threats, intimidation, and other coercive measures," primarily to "harass or discriminate
against the plaintiff[]." See Smithfield Foods, Inc. v. United Food and Commercial Workers Int'l
Union, 593 F. Supp. 2d 840, 844 (E.D. Va. 2008).
The Court has reviewed plaintiff's original and amended complaints, and his memoranda
in opposition to the Jones Walker motion to dismiss, and it is clear that all of plaintiff's
allegations against the Jones Walker DC Defendants solely concern their petitioning activities on
behalf of their clients before various governmental bodies. See Am. Compl. passim; Pl.'s Opp'n
to Jones Walker Mot., ECF Doc. No. 35, at 24-25 (contending that in petitioning Congress,
8
"Jones Walker . . . [acted] in their official capacity of Lobbyist for Laws, [and] . . . solely as an
Attorney Law Firm," and "PURELY FOR PROFITS"). Furthermore, none of the allegations
even remotely suggest that the Jones Walker DC Defendants used that petitioning activity as a
"sham" for the purpose of intimidating or harassing plaintiff or otherwise discriminating against
him. Accordingly, the Court holds that the Jones Walker DC Defendants are immune from
plaintiff's claims under the Noerr-Pennington doctrine.4
III. The District of Columbia Bar
The D.C. Bar contends that, even if plaintiff had standing to assert a claim against it, the
D.C. Bar should be dismissed from this case based on, inter alia, immunity against claims
challenging how it conducts the attorney disciplinary process. See D.C. Bar Mem. at 11-13. The
Court agrees.
First, D.C. Bar Rule XI, § 19(a) provides for broad immunity to participants in the
disciplinary process. It states:
(a) Immunity. Complaints submitted to the Board or Bar Counsel shall be
absolutely privileged, and no claim or action predicated thereon may be instituted
or maintained. Members of the Board, its employees, members of Hearing
Committees, Bar Counsel, and all assistants and employees of Bar Counsel, all
persons engaged in counseling, evaluating or monitoring other attorneys pursuant
to a Board or Court order or a diversion agreement, and all assistants or
employees of persons engaged in such counseling, evaluating or monitoring shall
be immune from disciplinary complaint under this rule and from civil suit for any
conduct in the course of their official duties.
Id. (emphasis added). The District of Columbia Court of Appeals promulgated this rule under
4
The Jones Walker DC Defendants also move to dismiss plaintiff's claims on the ground
that they did not have an attorney-client relationship with him and, hence, owed him no legal
duties. See Jones Walker Mem. at 9-14; Jones Walker Supplemental Mem. at 2-4; Jones Walker
Reply at 2-14; Pl.'s Opp'n, ECF Doc. No. 35, at 9-14, 20-21. However, plaintiff and defendants
both refer to facts outside of the complaint to make their arguments on this issue, and hence the
Court does not reach it in resolving the pending motions.
9
the statutory authority given to it by Congress to adopt rules concerning the "censure, suspension,
and expulsion" of bar members. See District of Columbia Court Reform and Criminal Procedure
Act of 1970, Pub. L. No. 91-358, §§ 11-2501, 11-2502, 84 Stat. 473, 521 (July 29, 1970); see
also Rules Governing the District of Columbia Bar, Preamble. Accordingly, suits against those
components of the D.C. Bar engaged in the disciplinary process are appropriately dismissed
based on the immunity conferred by this rule. See Thomas v. Knight, 257 F. Supp. 2d 86, 94
(D.D.C. 2003) (where defendants are "acting within the scope of their official duties as the
disciplinary arm of the [D.C. Court of Appeals], they are immune" from suit), aff'd, 2003 WL
22239653 (D.C.Cir. Sept. 24, 2003); Nwachukwu v. Rooney, 362 F. Supp. 2d 183, 192 (D.D.C.
2005) (noting that D.C. Bar Rule XI, § 19(a) grants those acting as the disciplinary arm of the
court -- there, the Bar Counsel -- "immunity from suit for any conduct in the course of their
official duties").
Additionally, the common law also provides absolute immunity to the D.C. Bar with
respect to its decisions whether or not to initiate disciplinary proceedings. The D.C. Circuit has
held that another disciplinary arm of the District of Columbia Court of Appeals -- the Committee
on the Unauthorized Practice of Law -- is entitled to "the full protection of absolute immunity"
for its actions involved in the assessment of whether to initiate disciplinary proceedings. See
Simons v. Bellinger, 643 F.2d 774, 780 (D.C. Cir. 1980). The court explained that "the
Committee was performing, by delegation, the inherent judicial function of determining who is
authorized to practice law," and was "serv[ing] as an arm of the court." Id. Those same
principles apply to the D.C. Bar, which plaintiff has sued based on its alleged failure to disbar or
pursue some other disciplinary action against the Jones Walker attorneys. See Nwachukwu, 362
F. Supp. 2d at 192 (holding that "an allegedly wrongful decision not to initiate formal
10
proceedings . . . is judicial in nature" and, hence, entitled to absolute immunity under Simons v.
Bellinger, 643 F.2d at 780). Plaintiff objects to dismissal, invoking broad references to the
general duty of the D.C. Bar "to protect, defend, and honor the United States Constitution," and
the primacy of his Constitutional rights over any immunity doctrines. See Pl.'s Opp'n to D.C.
Bar's Mot., ECF Doc. No. 40, at 8-15. However, that rhetoric fails altogether to address the legal
standards that govern absolute immunity. In short, the D.C. Bar is shielded from plaintiff's
claims by the immunity set forth in D.C. Bar Rule XI, § 19(a) and the absolute immunity
attendant to its disciplinary functions as recognized in Simons v. Bellinger.
IV. Venue
Plaintiff has alleged that venue lies in the District of Columbia based on the actions of the
Jones Walker DC attorneys and the D.C. Bar. Am. Compl. at 12. The Court observed in its
initial order that a transfer of venue to Louisiana would likely be appropriate if the DC
defendants were dismissed, in light of the location of well over 100 defendants there and the
close nexus between the events alleged and that state. See Order at 2-3 (filed Apr. 21, 2009).5
The general venue statute provides that: "For the convenience of parties and witnesses, in
the interest of justice, a district court may transfer any civil action to any other district or division
where it might have been brought." 28 U.S.C. § 1404(a). Here, virtually all of the remaining
named parties are located in Louisiana. These include the Louisiana State Bar Association and
its Board of Governors, two judges in the Eastern District of Louisiana, dozens of attorneys in
5
For example, plaintiff alleges that many of the Louisiana defendants misused their
professional licenses to pursue illegal seizures, sales, and attachments of his Louisiana properties
and to interfere with several lawsuits in state and federal courts located in Louisiana. See, e.g.,
Am. Compl. at 51-72, 95-97. The complaint further indicates that plaintiff was a resident of
Louisiana during much of the time period at issue. Id. at 59-70.
11
New Orleans or elsewhere in Jefferson Parish, and sheriffs located in Jefferson Parish. See Am.
Compl. at 13-40. Many of these parties appear to be the relevant witnesses as well. Since the
few defendants located in the District of Columbia have been dismissed, this case has no further
connection to this venue. Plainly, then, venue is appropriate in Louisiana, and in particular, in
the Eastern District of Louisiana (which covers New Orleans and the Jefferson Parish).
Therefore, pursuant to 28 U.S.C. § 1404, the Court concludes that it is in the interests of justice
to transfer this action to the Eastern District of Louisiana for the convenience of the parties and
witnesses and also considering the close nexus between the events alleged and that district.6
CONCLUSION
For the foregoing reasons, the Court will grant the motions to dismiss filed by the District
of Columbia Bar and the Jones Walker DC Defendants. With respect to the remaining
defendants, the Court will transfer this action to the Eastern District of Louisiana. A separate
order accompanies this memorandum opinion.
/s/
JOHN D. BATES
United States District Judge
Date: September 16, 2010
6
Transfer of venue arguably is required under 28 U.S.C. § 1406(a) as well, which
provides for transfer where a case is filed in the wrong district.
12