In the Supreme Court of the State of Montana

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UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ______

JERRY O‟NEIL, et al., C.A. No. 09-35928

Plaintiffs-Appellants, D.C. No. CV-00091-DWM-JCL District of Montana, Missoula v.

STATE BAR OF MONTANA, et al.,

Defendants-Appellees.

BRIEF OF STATE APPELLEES

On Appeal from the United States District Court for the District of Montana, Missoula Division, The Honorable Donald W. Molloy, Presiding

APPEARANCES:

STEVE BULLOCK Montana Attorney General CHRIS D. TWEETEN* Chief Civil Counsel J. STUART SEGREST* Assistant Attorney General P.O. Box 201401 Helena, MT 59620-1401 (406) 444-2026 ATTORNEYS FOR APPELLEES *Counsel of Record Case: 09-35928 01/29/2010 Page: 2 of 31 ID: 7213651 DktEntry: 10

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...... III

STATEMENT OF JURISDICTION ...... 1

STATEMENT OF THE ISSUE ...... 1

STATEMENT OF THE CASE ...... 1

STATEMENT OF THE FACTS ...... 5

SUMMARY OF THE ARGUMENT ...... 7

ARGUMENT ...... 10

I. AS CONCEDED BELOW, THE AMENDED COMPLAINT WAS PROPERLY DISMISSED BY THE DISTRICT COURT BECAUSE THE ROOKER-FELDMAN BAR PRECLUDED JURISDICTION...... 10

A. Standard of Review ...... 10

B. Plaintiffs Conceded the Correctness of the Magistrate Judge‟s Conclusion That Rooker-Feldman Barred the Amended Complaint, Did Not File a Proper Objection To It, And Have Not Argued Against It on Appeal. They Have Therefore Waived the Issue...... 11

C. In Any Case, The Magistrate Judge and District Court Correctly Applied the Rooker-Feldman Doctrine...... 12

II. THE MOTION TO FILE THE THIRD AMENDED COMPLAINT WAS PROPERLY DENIED AS FUTILE BECAUSE THE PROPOSED COMPLAINT WOULD, IF FILED, BE SUBJECT TO DISMISSAL...... 17

A. Standard of Review ...... 18

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TABLE OF CONTENTS (Cont.)

B. The District Court Did Not Abuse Its Broad Discretion by Denying the Motion to Amend Where the Third Amended Complaint Would Still Be Subject to Dismissal for Several Reasons...... 19

1. The Proposed Amended Complaint Would Be Barred by Rooker Feldman ...... 19

2. The Relief Plaintiffs Seek on Appeal Requests an Advisory Opinion as well as Relief that Cannot Be Granted by the State Defendants...... 20

CONCLUSION ...... 23

STATEMENT OF RELATED CASES ...... 23

CERTIFICATE OF SERVICE ...... 24

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TABLE OF AUTHORITIES

CASES

Allen v. Beverly Hills, 911 F.2d 367 (9th Cir. 1990)...... 18

Bates v. State Bar of Arizona, 433 U.S. 350 (1977) ...... 19

District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1963) ...... 13, 15

Exxon Mobil v. Saudi Basic Indust., 544 U.S. 280 (2005) ...... 12

Greenwood v. Federal Aviation Admin., 28 F.3d 971 (9th Cir. 1994) ...... 11

Johnson v. De Grandy, 512 U.S. 997 (1994) ...... 14

Klamath-Lake Pharmaceutical Association v. Klamath Medical Serv. Bureau, 701 F.2d 1276 (9th Cir. 1983) ...... 17

Kougasian v. TMSL, 359 F.3d 1136 (9th Cir. 2004) ...... 15

Lance v. Dennis, 546 U.S. 459 (2006) ...... 14

Meehan v. County of Los Angeles, 856 F.2d 102 (9th Cir. 1988)...... 11, 20

Montana Supreme Court Commission on the Unauthorized Practice of Law v. O'Neil, 2006 MT 284, 334 Mont. 311, 147 P.3d 200 ...... 5

iii

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TABLE OF AUTHORITIES (Cont.)

Moore v. Brewster, 96 F.3d 1240 (9th Cir. 1996), cert. denied, 519 U.S. 1118 (1997) ...... 16

Noel v. Hall, 341 F.3d 1148 (9th Cir. 2003) ...... 10, 13, 16

O'Neil v. Montana Supreme Court Commission on the Unauthorized Practice of Law, 127 S. Ct. 1868 (2007) ...... 5

Pritikin v. DOE, 254 F.3d 791 ...... 22

Reusser v. Wachovia Bank, 525 F.3d 855 (9th Cir. 2008)...... 15

Rooker v. Fidelity Trust, 263 U.S. 413 (1923) ...... 12

Stormans v. Selecky, 586 F.3d 1109 (9th Cir. 2009) ...... 21

United States v. $25,000 U.S. Currency, 853 F.2d 1501 (9th Cir. 1988) ...... 23

United States v. Remsing, 874 F.2d 614 (9th Cir. 1989)...... 12

Yakima Indian Nation v. Washington Department of Revenue, 176 F.3d 1241 (9th Cir. 1999) ...... 18

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TABLE OF AUTHORITIES (Cont.)

FEDERAL AUTHORITIES

United States Constitution Art. III...... 1

United States Code 28 U.S.C. § 1257 ...... 12 28 U.S.C. § 636(b) ...... 12

Federal Rules of Appellate Procedure Rule 32(a)(7)(C) ...... 25 Rule 9(b) ...... 16 Rule 12(b)(6) ...... 16, 22 Rule 15(a)(2) ...... 18

Federal Rules of Civil Procedure Rule 72(b)(3) ...... 12 Rule 25(d) ...... 2

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STATEMENT OF JURISDICTION

As determined below, the District Court lacked jurisdiction because of the Rooker-Feldman bar, as argued more fully herein. Additionally, none of the statutes cited by the Plaintiffs in their “Jurisdictional Statement,” nor

Article III of the United States Constitution, conferred jurisdiction on the

District Court.

State Defendants agree, however, that this Court has jurisdiction to entertain this appeal.

STATEMENT OF THE ISSUE

Did the District Court err in dismissing this case where the Plaintiffs seek reversal of a state-court judgment and any secondary relief regarding

O‟Neil‟s right to practice before tribal or federal tribunals may not be granted by the State Defendants?

STATEMENT OF THE CASE

Due to the Plaintiffs‟ sparse statement of the case, along with several incorrect cites in their statement of the case and facts, the Montana Supreme

Court Commission on the Unauthorized Practice of Law, Eleventh Judicial Case: 09-35928 01/29/2010 Page: 8 of 31 ID: 7213651 DktEntry: 10

District Court, Montana Supreme Court, Steve Bullock,1 Attorney General of

Montana, and Montana Department of Public Health and Human Services,

Office of Fair Hearings (collectively referred to as “State Defendants”), submit the following.

The original Complaint in this case was filed by Jerry O‟Neil

(“O‟Neil”) in June of 2008. The primary relief sought was a declaration that a prior state judgment, “State of Montana v. O‟Neil,” is “a void judgment.”

(SER 100-101, Dkt. # 1.) Along with the State Defendants, the State Bar of

Montana and Betsy Brandborg were listed as defendants. Also listed were two federal defendants, Deborah Platt Majoras, then Chairman of the Federal

Trade Commission, and Thomas O. Barnett, then Acting Assistant Attorney

General for Antitrust. (SER 96.)

After a motion to dismiss was filed by the federal defendants,

O‟Neil was granted leave to file an Amended Complaint, in which he dropped the federal Defendants and added four co-plaintiffs: Dennis and

Melina Woldstad, Gordon Sellner and Michael McBroom, hereafter

1 Pursuant to Federal Rule of Civil Procedure 25(d), Steve Bullock was automatically substituted for former Montana Attorney General Mike McGrath upon taking office January 5, 2009. 2

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referred to as the “Additional Plaintiffs.” (SER 76; Dkt. # 43.2) Still seeking a declaration that the state judgment is “void,” the Amended

Complaint further seeks a declaration that the Additional Plaintiffs are entitled to have O‟Neil represent them in state or federal proceedings.

(SER 90-93.)

The State Bar and State Defendants then filed separate motions to dismiss arguing that the Amended Complaint should be dismissed for lack of subject matter jurisdiction, for failure to state a claim upon which relief may be granted, and based on sovereign immunity. (Dkt. # 53, 55.) Prior to the issuance of the Magistrate Judge‟s recommendation on the motions to dismiss, the Plaintiffs sought leave to file a Second Amended Complaint.

(Dkt. # 66.) Agreeing with the defendants‟ motions, the Magistrate Judge recommended dismissal based on the Rooker-Feldman bar and, as to the

Additional Plaintiffs, for failure to state a claim on which relief may be granted. (SER 10-25; Dkt. # 77.)

The Plaintiffs, instead of directly challenging the Magistrate Judge‟s

Findings and Recommendation, sought leave to file what they titled a “Third

Amended Complaint” (though the motion for leave to file the Second

2 Plaintiff‟s brief erroneously refers to the first amended complaint as the “second” and erroneously cites to Dkt. # 37, which is O‟Neil‟s motion for leave to file. (Pls.‟. Br. at 8.) 3

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Amended Complaint had not been granted). (SER 55-63; Dkt. # 87.) The

Third Amended Complaint, as proposed, would drop the direct request for a declaration that the state judgment was void, while maintaining and in some cases expanding the claims and arguments of the Amended Complaint. (SER

29-53; Dkt. # 87-4.)

Recognizing the sound reasoning provided in the Magistrate Judge‟s recommendation concerning the Rooker-Feldman bar, the District Court adopted the Magistrate Judge‟s findings and recommendation in its entirety, dismissed the case with prejudice, and denied the motions for leave to file a

Second and Third Amended Complaint as futile. (SER 5-9; Dkt. # 101.)

Though the District Court had closed the case, the Plaintiffs filed what they titled a “Motion to Reconsider Pursuant to Rule 59(e).” (Dkt. # 103.) The

District Court denied the motion to reconsider and once more closed the case, noting that the Plaintiffs, as with their objection to the Magistrate Judge‟s original recommendation, “fail[ed] to make specific objections, and instead tr[ied] to put forth new arguments to avoid dismissal.” (SER 2-3; Dkt. # 113.)

Plaintiffs now appeal the District Court‟s denial of their Motion to

Reconsider. (SER 26-27; Dkt. #115.)

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STATEMENT OF THE FACTS

As this case was dismissed below, this Court must assume the truth of the facts stated in the Plaintiffs‟ complaint. However, as many of the “facts” stated in the complaint(s) are actually legal allegations, and as many of the facts applicable to this appeal are what the complaints allege and what was decided in the state judgment, State Defendants submit the following.

1. The State Judgment That the Amended Complaint Seeks to Overturn

The state judgment that the Plaintiffs attack on constitutional and other grounds in their Amended Complaint is Montana Supreme Court Comm‟n on the Unauthorized Practice of Law v. O‟Neil, 2006 MT 284, 334 Mont. 311,

147 P.3d 200. (SER 90; Dkt. # 43.) The Amended Complaint also specifically questions the trial court decision by the Montana Eleventh

Judicial District Court. (SER 79.) The Judgment and Permanent Injunction itself is in the excerpts of record. (SER 55-74; Dkt. # 55-2) (collectively

“State Judgment.”) After losing his appeal before the Montana Supreme

Court, O‟Neil then petitioned the United States Supreme Court for certiorari and was denied. O‟Neil v. Montana Supreme Court Commission on the

Unauthorized Practice of Law, 127 S. Ct. 1868 (2007). For a more detailed recitation of the State Judgment, O‟Neil‟s claims therein, and the subsequent 5

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appeal, see the Magistrate Judge‟s first Findings and Recommendation.

(SER 11-13; Dkt. # 77.)

2. The Relief Sought by the Amended Complaint

Although the Plaintiffs now claim otherwise in their opening brief, the primary relief sought by Plaintiffs in the Amended Complaint was a

“declaration that the State of Montana v. O’Neil is a void judgment” on constitutional as well as other grounds. (SER 90 (prayer for relief (1));

Dkt. # 43.) The Amended Complaint‟s prayer for relief also requests a series of declarations regarding specific acts that O‟Neil claims he is entitled to perform, lettered (a) to (w). The last claim for relief seeks damages against the State Bar and Betsy Brandborg. Other than these claims, the relief sought regards the Additional Plaintiffs‟ right to have O‟Neil represent them in their specific cases as well as “other similar situations.” (SER 90-93.)

3. The Proposed Third Amended Complaint and Appeal

The motion for leave to file the Third Amended Complaint states

“Plaintiffs no longer are asking the Court to overturn or interpret the [State

Judgment].” (SER 57; Dkt. # 87.) While the proposed Third Amended

Complaint does leave out the request for a declaration that the State Judgment

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is “void,” (SER 49; Dkt. # 87-4.), the motion to amend still lists what it titles the “Wrongs of Defendants,” most of which were adjudicated by the State

Judgment. (SER 61-63; Dkt. # 87.) The District Court, in its order dismissing the Amended Complaint as barred by Rooker-Feldman, also denied the motion to file the Proposed Third Amended Complaint as futile, noting that it “challenges alleged actions of Defendants that the Montana

Supreme Court has vindicated.” (SER 8; Dkt. # 101.)

Plaintiffs now appeal, and their theory has changed once again. They specifically appeal the motion to reconsider. (SER 26-27; Dkt. #115.) The arguments in their opening brief, however, focus on obtaining a declaratory ruling that O‟Neil is licensed before the Blackfeet Tribal Court, that the

Blackfeet Tribal Court has sole jurisdiction to determine who is licensed to practice before it, and that this tribal license should allow O‟Neil to practice before federal tribunals. These claims were not specifically adjudicated by the District Court.

SUMMARY OF THE ARGUMENT

The District Court properly dismissed the Amended Complaint for lack of subject matter jurisdiction due to the Rooker-Feldman bar. The District

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Court also properly denied Plaintiff‟s motion for leave to file the Third

Amended Complaint because the amendment would have been futile.

As noted by the District Court, the Plaintiffs, instead of denying that

Rooker-Feldman barred their claim, agreed with the Magistrate Judge‟s reasoning and moved to amend their complaint once again to remove the overt reference to “voiding” the State Judgment. By agreeing with the

Magistrate Judge‟s decision, Plaintiffs waived the right to contest the dismissal of the Amended Complaint on appeal.

In any case, the District Court correctly determined that the Amended

Complaint is barred by the Rooker-Feldman doctrine as to Plaintiff O‟Neil.

The Amended Complaint is a de facto appeal, or perhaps even a direct appeal, as it seeks a declaration that the State Judgment is a “void judgment.” The remaining, related issues are “inextricably intertwined” with this de facto appeal and therefore were also properly dismissed. While the Additional

Plaintiffs, who were not a party to the State Judgment, are not subject to the

Rooker-Feldman bar, their claims were nevertheless properly dismissed for failing to state a claim on which relief can be granted. Each Plaintiff sought a declaration that O‟Neil could represent them in some manner, relief that could not be granted without reversing or at least modifying the State Judgment.

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The District Court also did not abuse its broad discretion when it denied leave to file the Third Amended Complaint. Allowing Plaintiffs to file the proposed Third Amended Complaint would have been futile and would have allowed Plaintiffs to make an “end run” around the Rooker-Feldman bar.

The Plaintiffs, however, now claim that they are only seeking a declaration regarding O‟Neil‟s status as a tribal attorney and his right to practice before federal tribunals. These newly pressed claims, even if not

“intertwined” with his de facto appeal, are still subject to dismissal. The State

Defendants have not interfered with O‟Neil‟s tribal license, and the various complaints do not seriously accuse the State of doing so. Nor has O‟Neil sought admittance to practice before any federal tribunal, as far as State

Defendants are aware, and in any case, the State Defendants do not have the power to allow him, or not, to practice before federal tribunals. Thus these claims fail to present a case or controversy, seek an advisory opinion, are unripe, and fail to state a claim for which relief may be granted by these defendants.

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ARGUMENT

I. AS CONCEDED BELOW, THE AMENDED COMPLAINT WAS PROPERLY DISMISSED BY THE DISTRICT COURT BECAUSE THE ROOKER-FELDMAN BAR PRECLUDED JURISDICTION.

The Court below correctly applied the Rooker-Feldman doctrine and concluded that the Amended Complaint should be dismissed for lack of jurisdiction. Bowing to the logic of the Magistrate Judge‟s recommendation, and looking for a way to keep the lawsuit going, Plaintiffs in essence agreed that the Amended Complaint was barred and sought instead to further amend their complaint. The Plaintiffs similarly do not directly challenge that analysis on appeal. As the Amended Complaint is a de facto appeal in regards to O‟Neil, and fails to state a claim in regard to the Additional

Plaintiffs, the District Court‟s adoption of the Magistrate Judge‟s analysis and dismissal of the Amended Complaint should be affirmed.

A. Standard of Review

This Court reviews a jurisdictional dismissal under the

Rooker-Feldman doctrine de novo. Noel v. Hall, 341 F.3d 1148, 1154

(9th Cir. 2003).

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B. Plaintiffs Conceded the Correctness of the Magistrate Judge’s Conclusion That Rooker-Feldman Barred the Amended Complaint, Did Not File a Proper Objection to It, And Have Not Argued Against It on Appeal. They Have Therefore Waived the Issue.

This Court should affirm the District Court‟s dismissal of the Amended

Complaint because the Plaintiffs in effect conceded that it was barred by

Rooker-Feldman in their combined objection to the Magistrate Judge‟s recommendation and motion to file the Third Amended Complaint. As noted by the District Court, Plaintiffs, in their objection and motion to amend, withdrew their direct challenge to the State Judgment, “apparently recognizing the soundness of Judge Lynch‟s conclusion that the

Rooker-Feldman doctrine deprives this Court of jurisdiction over their claims.” (SER 7; Dkt. # 101.) In lieu of an objection, Plaintiffs moved for leave to file the Third Amended Complaint and stated they “no longer are asking the Court to overturn or interpret” the State Judgment. (SER 57; dkt. # 87.)

The issue of whether the Amended Complaint was properly dismissed as barred by Rooker-Feldman was therefore abandoned below and has not been argued on appeal. In fact, Plaintiffs, on appeal, admit they dropped their direct challenge to the State Judgment “in order to avoid Rooker-Feldman abstention [sic].” (Pls,‟ Br. at 13.) (Emphasis added.) The issue thus should

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not be considered by this Court. See Greenwood v. Federal Aviation Admin.,

28 F.3d 971, 977 (9th Cir. 1994) (“We will not manufacture arguments for an appellant, and a bare assertion does not preserve a claim, particularly when, as here, a host of other issues are presented for review.”) (citation omitted);

Meehan v. County of Los Angeles, 856 F.2d 102, 105 n.1 (9th Cir.

1988) (deeming an issue abandoned due to the party‟s failure to brief it).

Even if the Plaintiffs change of tactic is not a concession of the correctness of the Magistrate Judge‟s recommendation, it is, at the least, not a specific objection. In other words, the recommendation was not “properly objected to” as required by Fed. R. Civ. P. 72(b)(3), because Plaintiffs do not identify “specified proposed findings or recommendations” and state objections to them. (SER 6-7; Dkt. # 101 (citing to 28 U.S.C. § 636(b)).)

Because Plaintiffs failed to properly object to the Magistrate Judge‟s recommended dismissal of the Amended Complaint, they have waived the right, at least, to de novo review. See United States v. Remsing, 874 F.2d

614, 617 (9th Cir. 1989) (requiring “written objections” to preserve de novo review of the magistrate judge‟s recommendation).

C. In Any Case, The Magistrate Judge and District Court Correctly Applied the Rooker-Feldman Doctrine.

Appellate jurisdiction to “reverse or modify a state-court judgment” lies exclusively with the United States Supreme Court, per 28 U.S.C. § 1257. 12

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Exxon Mobil v. Saudi Basic Indus., 544 U.S. 280, 283 (2005). The

Rooker-Feldman doctrine, as it has come to be known, therefore bars suits

“brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.” Id. at 284.

This doctrine was first applied in the namesake case of Rooker v.

Fidelity Trust, 263 U.S. 413 (1923), where the plaintiff commenced suit in federal court to have a state-court judgment “declared null and void.” Exxon,

544 U.S. at 283 (quoting Rooker, 263 U.S. at 414). Likewise, in District of

Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983), the unsuccessful parties brought suit “against the very court that had” issued the unfavorable judgment. Exxon, 544 U.S. at 283. As discussed by the Ninth

Circuit at length in Noel, the parties in Feldman did not seek a “direct appeal,” but instead “its de facto equivalent.” Noel, 341 F.3d at 1155. “A suit brought in federal court is a „de facto appeal‟ forbidden by

Rooker-Feldman when „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 decision.” Carmona v. Carmona, 544 F.3d 988,

995 (9th Cir. 2008) (quoting Noel, 341 F.3d at 1164).

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A federal district court must not only refuse to hear a forbidden de facto appeal, but, “[a]s a part of that refusal, [the court] must also refuse to decide any issue raised in the suit that is „inextricably intertwined‟ with an issue resolved by the state court in its judicial decision.” Noel, 341 F.3d at 1158.

The “inextricably intertwined” analysis, however, is not conducted if there is no de facto appeal. Id. Additionally, the doctrine applies only to “cases brought by state-court losers.” Exxon, 544 U.S. at 284. Therefore, it is inapplicable to parties who were “not a party to the underlying state-court proceeding.” Lance v. Dennis, 546 U.S. 459, 464 (2006) (citing Johnson v.

De Grandy, 512 U.S. 997, 1006 (1994)).

The Amended Complaint here, as determined by the Magistrate Judge and the District Court, is at least a de facto appeal as applied to O‟Neil. More specifically, it is in part a “direct appeal,” because the Amended Complaint, like the complaint in Rooker, seeks to have the State Judgment against O‟Neil declared “void.” (SER 90; Dkt. # 43.) Thus, the District Court properly refused to hear the forbidden appeal, and also refused to resolve the other claims raised in the Amended Complaint because those claims were

“inextricably intertwined” with issues resolved by the state-court decision.

“O‟Neil would not be able [to] prevail on this or any of the other claims he asserts . . . unless [the District Court] were to effectively reverse the Montana

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Supreme Court‟s decision enjoining him from engaging in the unauthorized practice of law.” (SER 20; Dkt. # 77.) And the relief sought could not be granted without reversing that decision. Id.

The Amended Complaint clearly seeks relief from a state-court judgment by seeking a declaration that it “is a void judgment.” (SER 90;

Dkt. # 43.) It also claims that the “allegedly erroneous decision” is a “legal wrong.” For example, the Amended Complaint alleges that the state district court and Montana Supreme Court “misstated” facts and “misstated what tortuous [sic] action it was that commenced the tolling of the statute of limitations.” (SER 79; Dkt. # 43.) Further, as in Feldman, the unsuccessful party brought suit “against the very court that had” issued the unfavorable judgment--the Montana Supreme Court and the state district court. Exxon,

544 U.S. at 283. Thus, the Amended Complaint was properly dismissed as barred by Rooker-Feldman, at least as far as O‟Neil‟s claims.

In an attempt to avoid the Rooker-Feldman doctrine, O‟Neil alleged that the proceedings in the State Judgment were marred by extrinsic fraud and

“farcical.” (SER 90; Dkt. # 43.) The Ninth Circuit has recognized extrinsic fraud, defined as “conduct which prevents a party from presenting his claim in court,” as an exception to the Rooker-Feldman doctrine. Kougasian v.

TMSL, 359 F.3d 1136,1140 (9th Cir. 2004) (citation omitted). Thus, the

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exception only applies when conduct by an adverse party in the state litigation prevented a party from presenting a claim. Reusser v. Wachovia Bank,

525 F.3d 855, 859 (9th Cir. 2008).

Here, as noted by the Magistrate Judge, “there is nothing to suggest that

[O‟Neil] was somehow prevented from presenting his claims in state court and the extrinsic fraud exception to the Rooker-Feldman doctrine is thus inapplicable.” (SER 22; Dkt. # 77.) Additionally, a claim of “fraud” in the

Rooker-Feldman exception context requires the plaintiff to allege all the elements of fraud and comply with the Fed. R. Civ. P. 9(b) specificity requirement, which O‟Neil failed to do in the Amended Complaint. See

Moore v. Brewster, 96 F.3d 1240, 1245-46 (9th Cir. 1996), cert. denied,

519 U.S. 1118 (1997).

While Rooker-Feldman acted to bar O‟Neil‟s claims, the Additional

Plaintiffs were not a party to the underlying state proceeding, and thus

Rooker-Feldman does not deprive the District Court of jurisdiction over their claims. (SER 22; Dkt. # 77.) Instead, their claims were properly dismissed for failing to state a claim on which relief can be granted, pursuant to Fed. R.

Civ. P. 12(b)(6), because they are “premised on O‟Neil‟s right to provide legal representation on their behalf and to engage in the practice of law in this state.” (SER 23-24.) As the District Court was without jurisdiction to review

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the State Judgment regarding O‟Neil‟s enjoinment from the practice of law, it could not grant the relief requested by the Additional Plaintiffs.

Though, as noted in Noel, the Rooker-Feldman doctrine is sometimes tricky to apply when a de facto appeal is sought, the District Court here got it right and properly dismissed O‟Neil‟s claims as barred by Rooker-Feldman.

The Additional Plaintiffs‟ claims, likewise, were properly dismissed under

Rule 12(b)(6) because the Distirct Court could not authorize the representation they seek from O‟Neil without reversing or modifying the

State Judgment.

II. THE MOTION TO FILE THE THIRD AMENDED COMPLAINT WAS PROPERLY DENIED AS FUTILE BECAUSE THE PROPOSED COMPLAINT WOULD, IF FILED, BE SUBJECT TO DISMISSAL.

By seeking leave to file the Third Amended Complaint, Plaintiffs looked “to sustain the flickering life of this lawsuit.” Klamath-Lake

Pharmaceutical Ass‟n v. Klamath Medical Serv. Bureau, 701 F.2d 1276, 1292

(9th Cir. 1983). The District Court, however, acting within its broad discretion, properly denied Plaintiffs‟ request to once again amend their complaint. To do so would have been futile for several reasons. First, as determined by the District Court, the claims in the proposed Third Amended

Complaint would be barred by Rooker-Feldman, as it still sought 17

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modification, though no longer a direct appeal, of the State Judgment.

Additionally, the proposed complaint, as now described by the Plaintiffs on appeal, seeks an advisory opinion, is unripe, and seeks relief that cannot be granted against the State Defendants because they do not have the authority to prevent or allow O‟Neil to practice in tribal or federal tribunals.

A. Standard of Review

This Court reviews a denial of leave to amend for abuse of discretion.

Allen v. Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990) (citation omitted).

Absent a “definite and firm conviction that the district court committed a clear error of judgment,” it will not disturb the district court‟s decision. Id.

(citation omitted). Discretion to deny leave to amend is particularly broad where plaintiff has previously amended the complaint. Id. (citation omitted).

Generally a court “should freely give leave when justice so requires.”

Fed. R. Civ. P. 15(a)(2). A court has discretion to deny leave to amend, however, where the “amendment would cause prejudice to the opposing party, is sought in bad faith, is futile, or creates undue delay.” Yakama Indian

Nation v. Washington Dep‟t of Revenue, 176 F.3d 1241, 1246 (9th Cir. 1999)

(citation omitted).

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B. The District Court Did Not Abuse Its Broad Discretion by Denying the Motion to Amend Where the Third Amended Complaint Would Still Be Subject to Dismissal for Several Reasons.

1. The Proposed Amended Complaint Would Be Barred by Rooker-Feldman.

The District Court properly denied the motion to amend as futile and prevented the Plaintiffs “from making an end-run around the rule against de facto appeals.” Kougasian, 359 F.3d at 1142. Plaintiffs‟ proposed Third

Amended Complaint, though less direct than the First Amended Complaint, would still be subject to dismissal because it asks the District Court to modify the State Judgment by declaring that O‟Neil has the right to take certain actions without running afoul of (or with immunity from) the State Judgment.

For example, Plaintiffs would like to modify the Montana Supreme

Court‟s characterization of O‟Neil as a “lay advocate;” modify the injunction to allow him to represent “litigants before the Montana Department of Public

Health & Human Services, Office of Fair Hearings;” allow him to “draft and complete legal papers;” and finally, Plaintiffs seek a specific declaration as to what “the practice of law” consists of along with a declaration that the State may not prohibit the “unauthorized practice of law,” all in contravention of the State Judgment. (SER 32-47; Dkt. # 87-4.) The proposed Third

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Amended Complaint is thus still a de facto appeal that would be barred by

Rooker-Feldman and subject to dismissal.

Furthermore, any additional, side issues Plaintiffs raise in their proposed complaint, such as their antitrust claim,3 even if not barred by Rooker-

Feldman, should be considered abandoned because they have not been argued on appeal. Meehan v. County of Los Angeles, 856 F.2d 102, 105 n.1 (9th Cir.

1988) (deeming an issue abandoned due to the party‟s failure to brief it).

The proposed Third Amended Complaint would be subject to dismissal and therefore futile, and the District Court properly dismissed it.

2. The Relief Plaintiffs Seek on Appeal Requests an Advisory Opinion as well as Relief that Cannot Be Granted by the State Defendants.

The Plaintiffs, in their opening brief on appeal, now focus on O‟Neil‟s desire to have his tribal license “validated,” and the corresponding assertion that O‟Neil should be allowed to represent individuals, including the

Plaintiffs assert the truism that state courts lack jurisdiction to determine who is licensed to practice before tribal or federal tribunals. (Id. at 17.)

3 In any case, as argued in the State Defendants‟ motion to dismiss below, the Supreme Court has squarely addressed whether Parker immunity applies to protect states and their agencies from antitrust liability for regulatory actions pertaining to the practice of law. Bates v. State Bar of Arizona, 433 U.S. 350, 359-62 (1977). Any arguments about the merits of the analysis in Bates must be directed to the United States Supreme Court. 20

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Plaintiffs seek relief from the wrong parties. State Defendants agree that no Montana state court has precluded O‟Neil from practicing before tribal or federal tribunals, as they do not have jurisdiction to do so. Additionally, as far as State Defendants are aware, O‟Neil has not applied for admission to practice before the federal district court or any other federal tribunal.

Therefore, there would be no “case or controversy” between the State

Defendants and O‟Neil for the district court, or this Court, to adjudicate.

Stormans v. Selecky, 586 F.3d 1109, 1119 (9th Cir. 2009) (for there to be a justiciable case or controversy, plaintiff must have suffered an “injury in fact” that is “traceable to challenged action of the defendant,” and it must be

“likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision”) (citations omitted).

The proposed complaint instead seeks a prohibited “advisory opinion.”

Id. at 1122 (a court‟s “role is neither to issue advisory opinions nor to declare rights in hypothetical cases”) (citation omitted). If, on the other hand, the requested declaratory relief is based on the potential that State Defendants may interfere with O‟Neil‟s right to practice before tribal or federal tribunals, it would still be subject to dismissal as an “unripe” claim. Id. (a “generalized threat of prosecution” will not satisfy the ripeness requirement,

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which prevents courts “from entangling themselves in abstract disagreements”) (citation omitted).

Even if they surmounted all of these hurdles, the claims regarding

O‟Neil‟s ability to practice in federal or tribal courts in the proposed complaint are also subject to dismissal under Fed. R. Civ. P. 12(b)(6) for failing to state a claim against the State Defendants upon which relief can be granted. As noted by Plaintiffs, State Defendants have no control over federal court practice or jurisdiction to determine whom a tribe licenses. Thus, even if the District Court were to make the requested declarations concerning

O‟Neil‟s right to practice in tribal or federal courts, State Defendants could not effectuate those declarations. In other words, even if amended as proposed, the complaint would lack “redressability” because a decision for

Plaintiffs would not “produce tangible, meaningful results in the real world.”

Pritikin v. DOE, 254 F.3d 791, 799-800 (concluding plaintiff lacked standing because she sought “to change [DOE‟s] behavior only as a means to alter the conduct of a third party, not before the court, who is the direct source of

[Pritikin‟s] injury”) (brackets in the original) (citation omitted).

Briefly stated, the State Defendants have no authority to allow O‟Neil to practice in federal court or other federal tribunals, nor has O‟Neil petitioned a federal court to represent the Additional Plaintiffs. The refusal to

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allow the filing of the proposed Third Amended Complaint with respect to the authority to practice claims was therefore correct, even if the District Court did not precisely articulate its rationale. Cf. United States v. $25,000 U.S.

Currency, 853 F.2d 1501, 1504 n.1 (9th Cir. 1988) (judgment affirmed for reasons other than those stated by lower court).

CONCLUSION

For the foregoing reasons, the order denying reconsideration should be affirmed.

Respectfully submitted this 29th day of January, 2010. STEVE BULLOCK Montana Attorney General CHRIS TWEETEN Chief Civil Counsel J. STUART SEGREST Assistant Attorney General 215 North Sanders P.O. Box 201401 Helena, MT 59620-1401

By: /s/ J. Stuart Segrest J. STUART SEGREST Assistant Attorney General

STATEMENT OF RELATED CASES

The Appellee is unaware of any related cases pending before this Court.

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CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing Brief of Appellees with the Clerk of the Court for the United States Court of Appeals for the Ninth

Circuit by using the appellate CM/ECF system on January 29, 2010.

Participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system.

I further certify that some of the participants in the case are not registered CM/ECF users. I have mailed the foregoing document by

First-Class Mail, postage prepaid, or have dispatched it to a third party commercial carrier for delivery within 3 calendar days to the following non-CM/ECF participants:

Mr. Dennis & Ms. Melina Woldstad Mr. Gordon Sellner 39715 PO Box 525 700 Conley Lake Road Trego, MT 59934-0525 Deer Lodge, MT 59722

Mr. Michael McBroom P.O. Box 94 Olney, MT 59927-0094

DATED: 1/29/10 /s/ J. Stuart Segrest

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CERTIFICATE OF COMPLIANCE PURSUANT TO FED. R. APP. P. 32(a)(7)(C) and CIRCUIT RULE 32-1 FOR CASE NUMBER 09-35928

I certify that pursuant to Fed. R. App. P. 32(a)(7)(C) and Ninth Circuit

Rule 32-1, the attached Appellees‟ Brief is proportionately spaced, has a typeface of 14 points or more and contains 4,603 words as calculated by

Microsoft Word.

DATED: 1/29/10 /s/ J. Stuart Segrest