Civil Action No. 3:21cv638
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division
December 20, 2021
John A. Gibney, Jr., Senior United States District Judge
OPINION
Pro se plaintiff Nickolas G. Spanos sues Howard C. Vick, Jr., for violating the Virginia Code of Professional Conduct (“the VCPC“).1 Spanos seeks the revocation of Vick‘s license to practice law in Virginia and other “discipline . . . consistent with the laws” of Virginia. (ECF No. 1-1, at 38.) Vick moves to dismiss pursuant to
Assuming the truth of the factual allegations in the complaint and drawing all inferences in favor of Spanos, the Court concludes that Spanos does not have standing to prosecute Vick‘s alleged state ethical violations. But even if Spanos does have standing, the Court also finds that the Court has neither federal question nor diversity jurisdiction over the case. And the Court declines to exercise any supplemental jurisdiction it has over the case. Accordingly, the Court will remand the case to the Henrico County Circuit Court pursuant to
I. BACKGROUND
On December 3, 1998, and April 15, 1999, a multijurisdictional grand jury issued thirteen indictments charging Spanos for his alleged participation in a broad cocaine distribution conspiracy. (ECF No. 1-1, at 3.) On or around November 28, 1998, Spanos fled to Athens, Greece. (Id. at 4.) Spanos did not return, and according to Spanos, Vick is to blame. Spanos asserts that Vick told him to “leave for Greece and never come back.” (Id.) He claims that Vick later refused to request a Red Notice2 from Interpol for Spanos‘s arrest and that Vick made slanderous statements to the media in an attempt to “frighten” Spanos and dissuade him from “turning himself into law enforcement authorities.” (ECF No. 1-1, at 6.) Further, he claims that Vick conspired with, among others, various McGuireWoods partners, the Honorable Lee A. Harris, the Federal Bureau of Investigation, and several Henrico County commonwealth‘s attorneys to “unethically remove” Spanos as trustee and executor of his late father‘s trust and obstruct justice in various ways related to Spanos‘s indictments. (Id. at 6–10.)
Seeking redress for Vick‘s alleged misdoings, Spanos filed an “ethics complaint” in the Henrico County Circuit Court. (Id. at 2–3.) In the complaint, Spanos appears to raise several claims, including violations of both federal and Virginia criminal code provisions,3 violations of Spanos‘s “constitutional
In response to Vick‘s motion, Spanos disavowed not only any federal claim but also any request for personal relief. “In this plaintiff‘s legal ethics case, the express intent of the [p]laintiff is for the Court to discipline the [d]efendant Vick for alleged violations of the [VCPC].” (ECF No. 9, at 10.) The “[p]laintiff‘s case before this Court is not a private right of action[, and] it is a valid ethics complaint only.”5 (sic) (Id. at 14 (emphasis added).)
Spanos says that
jurisdiction under any Virginia Statute to impose discipline on attorneys practicing law in Virginia or to suspend or revoke any attorney‘s license.” (ECF No. 9, at 3.) As discussed below, this conclusion is plainly wrong.
Vick argues that the Court should exercise supplemental jurisdiction and dismiss Spanos‘s “ethics complaint” because the VCPC does not create a private right of action. (ECF No. 12, at 2.) Further, he asserts that Spanos “has not stated grounds to conclude that [Vick] . . . committed an ethical transgression.” (ECF No.
II. DISCUSSION
A. Pro Se Litigants
This principle of liberal construction is not without limits, however, and appearing pro se does not relieve plaintiffs of the obligation to comply with the Federal Rules of Civil Procedure. Courts need not discern the unexpressed intent of pro se plaintiffs or take on the “improper role of an advocate seeking out the strongest arguments and most successful strategies for a party.” Id. Courts do not have to “discern [the plaintiff‘s] unexpressed intent,” “construct a plaintiff‘s legal arguments,” or “conjure up and decide issues never fairly presented” in the complaint. Norman v. Wells Fargo Bank, N.A., No. 3:17cv585, 2018 U.S. Dist. LEXIS 29818, *4 (E.D. Va. Feb. 23, 2018) (cleaned up).
B. Removal
“The right to remove a case from state to federal court derives solely from
C. Federal Subject Matter Jurisdiction
i. Standing
Under Article III of the Constitution, federal courts may consider only “[c]ases” and “[c]ontroversies.”
“To establish an injury sufficient to confer standing to bring suit under Article III, a plaintiff must plausibly allege: (1) ‘an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant,
“Because redressability is an ‘irreducible’ component of standing, no federal court has jurisdiction to enter a judgment unless it provides a remedy that can redress the plaintiff‘s injury.” Uzuegbunam v. Preczewski, 141 S. Ct. 792, 801 (2021) (quoting Spokeo, 578 U.S. at 338). Spanos requests very specific relief: he asks the court “to revoke [Vick‘s] license [to] practice law in the Commonwealth of Virginia.” (ECF No. 1-1, at 39.) Under Virginia law, courts cannot grant the relief he seeks; his injury is not redressable. Resolution of the issue requires a detailed look at Virginia‘s law governing attorney discipline.
Virginia has a statutory and regulatory procedure to discipline lawyers.
Virginia law does not authorize disbarment proceedings in any way other than those outlined above. Ignoring both statutes and rules of court, Spanos argues that he can sue for Vick‘s disbarment under
The misadventures of Virginia attorney Jonathan Moseley demonstrate the error in Spanos‘s logic. Moseley misbehaved in Arlington Circuit Court. See In re Moseley, 273 Va. 688, 688, 643 S.E.2d 190, 190 (2007). After imposing sanctions of various sorts, the circuit court held a show cause proceeding to revoke Moseley‘s privilege to “practice before the Circuit Court of
Moseley‘s Arlington case, however, did not resolve his licensure problems. The Virginia State Bar later commenced disciplinary proceedings pursuant to the Rules of Court, and a three-judge court suspended Moseley‘s license for six months. Moseley v. Va. State Bar, ex rel. Seventh Dist. Comm., 280 Va. 1, 2, 694 S.E.2d 586, 589 (2010). The suspension covered the entire Commonwealth of Virginia, not just Arlington County. Id.
Critically, neither the Arlington case nor the disciplinary proceeding was filed by a litigant. Rather, the Arlington case commenced when the judge issued a rule to show cause, and the state-wide case was commenced by a Bar complaint. Neither of the Moseley cases followed the procedural path Spanos tries to tread. Under Virginia law, citizens only have the power to make a complaint to the Bar, which then prosecutes the matter.
Neither this Court nor the Henrico Circuit Court can grant the relief Spanos seeks. Since the Court cannot redress his injury, Spanos lacks standing.
When a case originates in federal court, the discovery that a plaintiff lacks standing requires dismissal. Buscemi, 964 F.3d at 261 (quoting S. Walk at Broadlands Homeowner‘s Ass‘n v. OpenBand at Broadlands, LLC, 713 F.3d 175, 185 (4th Cir. 2013)). The Fourth Circuit has not addressed whether a defendant‘s failure to establish Article III standing in a removed case—like the one here—instead requires remand to state court, but several other circuits have so concluded. See e.g., Collier v. SP Plus Corp., 889 F.3d 894, 896 (7th Cir. 2018); Wallace v. Conagra Foods, Inc., 747 F.3d 1025 (8th Cir. 2014). Because Article III standing is a “subject matter jurisdiction issue,” the Court concludes that
ii. Federal Question and Diversity Jurisdiction
Even if the Court found that Spanos has standing to file his complaint, it would still lack subject matter jurisdiction over the case because Spanos‘s claims do not support either federal question or diversity jurisdiction.
Pursuant to
First, Spanos fails to allege a violation of “the Constitution, laws, or treaties of the United States,” which could support federal jurisdiction under
D. Supplemental Jurisdiction8
Vick argues, however, that the Court should dismiss Spanos‘s ethics claims by exercising its supplemental jurisdiction. Even if the Court found that Spanos has standing to pursue his claims and that the Court has jurisdiction over the case, the Court would decline to exercise supplemental jurisdiction.
“The doctrine of supplemental jurisdiction indicates that federal courts generally have discretion to retain or dismiss state law claims when the federal basis for an action drops away.” Shanaghan v. Cahill, 58 F.3d 106, 109 (4th Cir. 1995) (emphasis in original). A court declining to exercise supplemental jurisdiction has “inherent power to dismiss the case or, in cases removed from State court, to remand, provided the conditions set forth in § 1367(c) for declining to exercise supplemental jurisdiction have been met.” Hinson v. Norwest Fin. S.C., Inc., 239 F.3d 611, 617 (4th Cir. 2001) (emphasis added). Pursuant to
(1) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.
“Although a federal court has discretion to assert [supplemental] jurisdiction over state claims even when no federal claims remain, ‘. . . if the federal claims are dismissed before trial . . . the state claims should be dismissed’ without prejudice.” Alexandria Resident Council, Inc. v. Alexandria Redev. & Hous. Auth., 11 F. App‘x 283, 287 (2001) (internal citations and alteration omitted) (quoting United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966)). This is so because “[w]hen all federal claims are dismissed early in the litigation, the justifications behind [supplemental] jurisdiction—considerations of judicial economy, convenience and fairness to litigants‘—are typically absent.” Id. (quoting Gibbs, 383 U.S. at 726.)
Application of the
IV. CONCLUSION
For the foregoing reasons, Spanos lacks standing to sue for Vick‘s disbarment, and the Court has neither federal question nor diversity jurisdiction over his case. Further, even if it could assert supplemental jurisdiction, the Court would decline to do so. Accordingly, the Court will remand this case to the Henrico County Circuit Court pursuant to
The Court will issue an appropriate Order.
Let the Clerk send a copy of this Opinion to the pro se plaintiff and all counsel of record.
Date: 20 December 2021
Richmond, VA
/s/
John A. Gibney, Jr.
Senior United States District Judge
Notes
In his response to Vick‘s motion to dismiss, Spanos states that the “[p]laintiff has not sued for alleged violations of Virginia criminal law. Plaintiff‘s ethical complaint alleges only that federal and state criminal acts violate[] the Rules of the VCPC.” (ECF No. 9, at 12; see also id. at 15 (“The statute of limitations for alleged violations of the U.S. Code . . . do not apply in [p]laintiff‘s case . . . [p]laintiff is not requesting any relief under those statutes.“).)
In his response to Vick‘s motion to dismiss, Spanos states that “[t]he [p]laintiff has only included in Counts I., II., [and] III., of his ethics complaint that Defendant Vick allegedly committed criminal acts that violate the Rules of the [VCPC].” (ECF No. 9, at 12. But see id. at 45 (stating Vick violated Spanos‘s “Fifth Amendment right to due process” and his “Sixth Amendment right to a speedy trial” when he refused to file an affidavit for extradition.).)