10 9 06 NVD 641 Mirch Opposition To Beesley's MTN To Dismiss

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KEVIN J. MIRCH, ESQ.
NV Bar No. 000923
320 Flint Street
Reno, Nevada 89501
(775) 324-7444
Plaintiff in Pro Per
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
Plaintiff,
v. Case No. 3:05-CV-00641-RLH-RAM
BRUCE BEESLEY, ROB BARE,
BRIDGET ROBB PECK,
DONALD CHRISTENSEN, STATE BAR
OF NEVADA, DOES I -X
A-Z Corporations,
Defendant.
___________________________________ /
OPPOSITION TO MOTION TO DISMISS (Fed.R.Civ.P.12(b)(1)
and OPPOSITION TO DISMISS PLAINTIFFS FIRST AMENDED COMPLAINT
COMES NOW, Plaintiff, KEVIN MIRCH, ESQ., in pro per and opposes
Defendant State Bar of Nevadas (State Bar)Motion to Dismiss (Fed. R. Civ.P.
12(b)(1) and the Motion to Dismiss Plaintiffs First Amended Complaint filed on
behalf of Defendants Bruce Beesely, Bridget Robb Peck, Rob Bare and Donald
Christensen. This Opposition is based on the following memorandum of points and
authorities, exhibits, affidavits and pleadings on file herein.
DATED this 9 day of October, 2006. KEVIN MIRCH
By:______/s/__________________
KEVIN MIRCH, ESQ.
320 Flint Street
Reno, NV 89501
(775) 324-7444
Plaintiff
Case 3:05-cv-00641-RLH-RAM Document 46 Filed 10/09/06 Page 1 of 23
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Defendants take issue with the fact that the amended complaint was served 120 days
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after its initial filing. There is nothing improper as service was accomplished within the
parameters of the Federal Rules of Civil Procedure, and in fact the Amended Complaint had to
be filed before it was served.
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POINTS AND AUTHORITIES
FACTS
a. Introduction
This action arises from years of disparate treatment by the Defendants against
Mr. Mirch in an attempt to interfere with his practice of law in the State of Nevada,
specifically to use State Bar complaints against Mr. Mirch as a litigation tool. This
action commenced on November 23, 2005 with the filing of a civil complaint, which
was later amended on March 23, 2006. The First Amended Complaint was then
served upon the Defendants in late March, 2006 , and plead the following causes of
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action: (1) combination and conspiracy in violation of Section 1 of the Sherman act
and Section 4 of the Clayton act; (2) Constitutional violation due process; (3) breach
of the covenant of good faith and fair dealing; (4) tortuous interference with business;
and (5) injunctive relief.
On April 19, 2006, Defendants filed two motions to dismiss. (Dock #s 12 &
13). All Defendants argue that dismissal is proper on the grounds that this Court
lacks subject matter jurisdiction, the Defendants are entitled to Eleventh Amendment
immunity, and that this Court must abstain in favor of the state judicial proceedings,
pursuant to the Younger abstention doctrine. The Defendants claim that the sole
purpose of the Amended Complaint is to interfere with the State Bar disciplinary
action. This statement ignores the crux of the complaint which is the ongoing conduct
of the Defendants to interfere with Mr. Mirchs business of practicing law.
///
///
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II
LEGAL ANALYSIS AND ARGUMENT
a. Standard for evaluating a complaint for Dismissal under FRCP 12
On a motion to dismiss under F.R.Civ.P. 12(b)(1) , the plaintiff bears the burden of proving
that the Court has jurisdiction to decide the case. Kokkonen v. Guardian Life Insurance Co., 511 U.S.
375, 377, 114 S. Ct. 1673, 128 L. Ed. 2d 391 (1994). "Federal courts are courts of limited jurisdiction.
. . . It is to be presumed that a cause lies outside this limited jurisdiction, and the burden of
establishing the contrary rests upon the party asserting jurisdiction." Id. In resolving a motion to
dismiss for lack of subject matter jurisdiction, the Court is not limited to allegations in the complaint,
but may consider material outside the pleadings. St. Clair v. City of Chico, 880 F.2d 199, 201 (9th
Cir. 1989).
In the present case, the Defendants are seeking dismissal under FRCP 12(b)(1) based on
Eleventh Amendment immunity and the argument that the Defendants are exempt from the Sherman
and Clayton Acts (15 U.S.C. 1,2, 15 and 26). Defendants also argue that the Younger abstention
doctrine bars jurisdiction of the federal court.
Defendants alternatively move to dismiss under F.R.Civ.P. 12(b)(6), asserting that Plaintiffs
fail to state a claim upon which relief can be granted. "The purpose of a motion to dismiss under rule
12(b)(6) is to test the legal sufficiency of the complaint." North Star International v. Arizona Corp.
Commission, 720 F.2d 578, 581 (9th Cir. 1983). The Court must "take as true all allegations of
material fact stated in the complaint and construe them in the light most favorable to the nonmoving
party." Newman v. Sathyavaglswaran, 287 F.3d 786, 788 (9th Cir. 2002). A complaint should not be
dismissed under F.R.Civ.P. 12(b)(6) "unless it appears beyond doubt that the plaintiff can prove no
set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41,
45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957). "The court may dismiss a complaint as a matter of law
for '(1) lack of a cognizable legal theory or (2) insufficient facts under a cognizable legal claim.'"
Smilecare Dental Group v. Delta Dental Plan of California, Inc., 88 F.3d 780, 783 (9th Cir.
1996)[*15] (quoting Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984)).
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Most courts grant leave to amend complaints that it deems are improperly plead.
III
ARGUMENT
a. The plaintiffs claims against the defendants are not subject to absolute
immunity
In the Motions to Dismiss, the Defendants argue that the claims are barred by
absolute immunity. This is not true. There are many cases which apply qualified
immunity instead of absolute immunity, even when a statute applies the latter standard.
Mr. Mirch was counsel on two of the cases decided favorably by the Nevada Supreme
Court which established exceptions to absolute immunity in the State of Nevada.
1. Absolute Immunity does not apply to fraud (Bar use as a litigation
tool)
Clark v. Columbia HCA, 117 Nev. 468; 25 P.3d 215 (2001), is a Nevada case
in which the Nevada Supreme Court reversed the summary judgment of the district
court finding that the respondents, members of a hospital peer review board were not
entitled to absolute immunity, and the Dr. Clark had overcome the presumption of the
review boards immunity. Mr. Mirch represented Dr. Clark in that action and won the
issue of absolute immunity on appeal. The Clark case involved the federal Health
Care Quality Improvement Act 42 U.S.C. 11112(a) and the issue of immunity in peer
review. The issue in Clark was absolute immunity under the HCQIA. The HCQIA
provided for absolute immunity. The Nevada Supreme Court held that members of
a peer review board are not immune for the conduct, especially in light of an ill-motive
and or judicial bias. Instead, qualified immunity applies, which the plaintiff has the
burden of overcoming.
Bank of America Nevada v. Bourdeau , 115 Nev. 263, 982 P.2d 474 (1999) is
another case which addresses exceptions to a privilege. Mr. Mirch represented Mr.
Bourdeau. In that case the Nevada Supreme Court held that any statements made to
the FDIC investigators were subject to a conditional privilege, unless the privilege is
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abused:
However, "[a] qualified or conditional privilege exists where a[*267]
defamatory statement is made in good faith on any subject matter in
which the person communicating has an interest, or in reference to which
he has a right or a duty, if it is made to a person with a corresponding
interest or duty." Circus Circus 99 Nev. at 62, 657 P.2d at 105 (citations
omitted).
A background investigation[***6] of an employee is subject to
conditional privilege, and any defamatory statements therein are not
actionable unless the privilege is abused by publishing the statements
with malice. Pierson v. Robert Griffin Investigations, 92 Nev. 605, 606,
555 P.2d 843, 843(1976); cf. Gallues v. Harrah's Club, 87 Nev. 624,
626-27, 491 P.2d 1276, 1277 (1971).
Whether a particular communication is conditionally privileged by being
published on a "privileged occasion" is a question of law for the court;
the burden then shifts to the plaintiff to prove to the jury's satisfaction
that the defendant abused the privilege by publishing the communication
with malice in fact. The question goes to the jury only if there is
sufficient evidence for the jury reasonably to infer that the publication
was made with malice in fact. Circus Circus 99 Nev. at 62, 657 P.2d at
105 (citations and footnote omitted).
Bourdeau, supra at 266-267. It is undisputed that Beesley, Peck. Et. Al were using
the Bar as an advertising and litigation tool by telling clients they had the power to
affect attorneys licenses and therefore the underlying cases. These Defendants have
gone outside of the scope of immunity. Their conduct is tantamount to litigation fraud
in the worst sense of the word.
b. Only qualified immunity applies to the non-prosecutorial conduct of the
defendants.
The Ninth Circuit Court of Appeals recently addressed the issue of absolute vs.
qualified immunity in the case of Botello v. Gammick, 2005 U.S. App. LEXIS 12112
(9 Cir. 2005). The Botello case was a 42 USC 1983 action by a former police
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officer against the Washoe County District Attorney. In that action the Court held:
Prosecutors are absolutely immune from liability under @1983 for their
conduct insofar as it is "intimately associated" with the judicial phase of
the criminal process. See Burns v. Reed, 500 U.S. 478, 486, 114 L. Ed.
2d 547, 111 S. Ct. 1934 (1991) (quoting Imbler v. Pachtman , 424 U.S.
409, 430, 47 L. Ed. 2d 128, 96 S. Ct. 984 (1976)); Miller v. Gammie, 335
F.3d 889, 897 (9th Cir. 2003) (en banc) ("To enjoy absolute immunity for
a particular action, the official must be performing a duty functionally
comparable to one for which officials were rendered immune at common
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law."). However, when prosecutors perform administrative or
investigative functions, only qualified immunity is available. See
Buckley v. Fitzsimmons , 509 U.S. 259, 271-73, 125 L. Ed. 2d 209, 113
S. Ct. 2606 (1993); Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir.
2003). That is, the actions of a prosecutor are not absolutely immune
merely because they are performed by a prosecutor. Buckley, 509 U.S. at
273.
To determine whether an action is judicial, administrative or
investigative, the court looks at "the nature of the function performed,
not the identity of the actor who performed it." Kalina v. Fletcher, 522
U.S. 118, 127, 139 L. Ed. 2d 471, 118 S. Ct. 502 (1997) (quoting
Forrester v. White, 484 U.S. 219, 229, 98 L. Ed. 2d 555, 108 S. Ct. 538
(1988)). Thus, whether a prosecutor benefits from absolute or qualified
immunity depends on which of the prosecutor's actions are challenged.
See Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 1999). The official
seeking absolute immunity bears the burden of demonstrating that
absolute immunity is justified for the function in question. Buckley,
509 U.S. at 269; Burns v. Reed, 500 U.S. 478 at 486 (1991). The
presumption is that qualified rather than absolute immunity is sufficient
to protect government officials in the course of their duties. Burns, 500
U.S. at 486-87.
Although the line between the functions is not entirely clear, it is
clear that absolute prosecutorial immunity is justified "only for
actions that are connected with the prosecutor's role in judicial
proceedings, not for every litigation-inducing conduct." Burns, 500
U.S. at 494. On the one hand, it is well established that a prosecutor[*11]
has absolute immunity for the decision to prosecute a particular case, see
Burns, 500 U.S. at 486, and for the decision not to prosecute a particular
case or group of cases, see Roe, 109 F.3d at 583. In addition, a
prosecutor's professional evaluation of a witness is entitled to absolute
immunity "even if that judgment is harsh, unfair or clouded by personal
animus." Id. at 584.
On the other hand, it is also well established that an official is not
entitled to absolute immunity for conduct involving termination,
demotion and treatment of employees. See Forrester, 484 U.S. at 228-30
(holding that a judge is not entitled to absolute immunity in his capacity
as an employer and therefore may be liable for unconstitutional conduct
involving the termination, demotion and treatment of employees); Meek
v. County of Riverside, 183 F.3d 962, 967 (9th Cir. 1999) (holding that
a judge's decision to fire an employee was an administrative decision not
entitled to absolute immunity).
[emphasis added]
Botello v. Gammick, supra , at pp 9-10.
In the present case, all of the defendants were sued by Mr. Mirch for conduct
that falls outside of the scope of absolute immunity. In each case, the Bar was being
used as a litigation tool. Under the circumstances, the highest immunity that could
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be applied is conditional immunity.
Rather than look at the nature of the conduct of the defendants and the nature
of the conduct alleged (i.e., whether it was intimately associated with the judicial
phase versus whether it was administrative or investigative) to determine whether
absolute or qualified immunity applies, the Defendants just argue blanket absolute
immunity to all of the conduct of the Defendants. This Court, in Botello v. Gammick,
supra, held that it is improper to apply blanket immunity just by labeling conduct as
falling within a particular prosecutorial function. Because the official seeking
absolute immunity bears the burden of demonstrating that absolute immunity is
justified for the function in question, see Buckley, 509 U.S. at 269, it was the
prosecutors burden to demonstrate that the conduct was tied to an exercise of their
prosecutorial judgment. Botello v. Gammick, supra at 16. In this case, the
Defendants sweep all conduct under the guise of judicial function in the disciplinary
process to afford them absolute immunity. However, as discussed above, the claims
relate to other conduct which is not entitled to absolute immunity.
Another case addressing this issue is Edgar v. Wagner, 101 Nev. 226; 699 P.2d
110; 1985 LEXIS 401, which correctly applied only qualified immunity to
investigative and administrative acts engaged in by the prosecutor. Both Edgar
and Stevens v. McGimsey, 99 Nev. 840; 673 P.2d 499 (1983) are based on the view
that bad motives can abrogate judicial immunity; Stevens relies on a Ninth Circuit
decision, Beard v. Udall, 648 F.2d 1264 (9th Cir. 1981), for that proposition. This
Court has rejected the rule that when the functions being performed are judicial or
prosecutorial. Ashelman v. Pope, 793 F.2d 1072, 1078 (9th Cir. 1986). However, the
Court did not address how the ruling applied to non-judicial or prosecutorial conduct,
such as investigation, which is not afforded absolute immunity.
Next, the application of Stivers v. Pierce, 71 F.3d 732, (9 Cir 1995), is
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relevant because it holds that if an adjudicator holds a financial interest in the
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outcome of the case, then there is a violation of due process:
Among the cases in which the appearance of bias is too high to
be constitutionally tolerable are those in which the adjudicator has a
direct and substantial pecuniary interest in the outcome of the case before
him. Withrow, 421 U.S at 47. In such cases, the adjudicators
participation constitutes a per se violation of due process - the
appearance of partiality in itself renders the proceedings objectionable,
without any showing that the adjudicator was actually biased. Aetna
Life, 475 U.S. 813 at 825, 89 L.Ed. 2d 823, 106 C.Ct. 1580; Utica
Packing Co. v. Block, 781 F.2d 71, 77-78 (6 Cir. 1986).
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The Supreme Court has held that a state licensing tribunal
violates due process when its members have a direct and substantial
competitive interest in the outcome of the proceedings before them.
Gibson, 411 U.S. at 578-79. In Gibson, the Court considered the
disciplinary proceedings of an optometry company. All the members of
the licensing board, however, were self-employed optometrists. 411 U.S.
at 571. The district court found that, if the optometry company were
forced to shut down, the individual members of the Boar, along with
other private practitioners of optometry, would all heir to this business.
Id. Without requiring any showing that he boards decision was
actually influenced by impermissible bias, the Court upheld the district
courts conclusion that the board members substantial pecuniary
interest in denying his licenses to competitors constituted a per se
violation of the plaintiffs right to due process. Id. At 579.
Stivers v. Pierce, supra at 742.
The board in Stivers was initially subject to qualified immunity, but lost that
immunity by not affording Stivers a fair hearing. In this case, the Defendants Beesley,
Peck and Christensen all had a financial interest in the outcome of their complaints
against Mirch because they were opposing counsel in the cases with Mirch. This is
a blatant violation of Stivers.
c. Eleventh Amendment Immunity does not apply to this action
1. The State Bar and Rob Bare can be sued
Defendants cite to Nevada Supreme Court Rule 76(1) as a basis to claim that the
State Bar is immune from suit. To the contrary, SCR 76(1) expressly states that the
state bar may be sued:
2. The state bar has perpetual succession and it may sue and be
sued...
The Eleventh amendment shield of immunity does not always apply to the state bar.
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Other jurisdictions have recognized this fact:
In concluding, we must address several other concerns raised by
appellees. They assert that, aside from the reasons advanced by the
district court, summary judgment was proper because the Alabama State
Bar is not a properly suable entity. Appellees offer no authority to
support this argument. We have allowed suits against the Alabama State
Bar in the past, see Parrish v. Board of Commissioners of the Alabama
State Bar, [**14] 533 F.2d 942 (5th Cir. 1976), and see no merit in
appellees' contention. Appellee also assert that summary judgment is
proper because the Commissioners of the State Bar are absolutely
immune from damages in this civil rights case. In response, appellants'
suit surely encompassed more than a claim for monetary relief, and thus
any individual damage immunity would not be dispositive of the case.
Furthermore, the individual appellees are not entitled to the total,
absolute immunity they claim. See Supreme Court of Virginia v.
Consumers Union, 446 U.S. 719, 100 S. Ct. 1967, 1975-77, 64 L. Ed. 2d
641 (1980). Moreover, as we have stressed in the past, the issue of an
immunity defense usually turns on issues of fact. Slavin v. Curry, 574
F.2d 1256 (5th Cir.) modified on other grounds, 583 F.2d 779 (5th Cir.
1978). See also Procunier v. Navarette, 434 U.S. 555, 98 S. Ct. 855, 55
L. Ed. 2d 24 (1978); Princeton Community Phone Book, Inc. v. Bate, 582
F.2d 706, 711-715 (3d Cir.), cert. denied, 439U.S. 966, 99 S. Ct. 454, 58
L. Ed. 2d 424 (1978). The affidavit plaintiffs submitted to the district
court raised important factual issues of good faith, record, vol. 1 at 115,
and thus in this case[**15] the issue of immunity was not subject to final
resolution on a motion for summary judgment.
Foley v. Alabama State Bar, 648 F.2d 355 (5 Cir. 1981) at 360
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2. The Eleventh Amendment does not protect Defendants Beesley, Peck
and Christiansen
The Eleventh Amendment applies to actions for money damages against the
state and state officials. Such actions are considered to be suits against the state, and
thus barred, if "'the state is the real, substantial party in interest.'" Pennhurst State
School & Hospital v. Halderman, 465 U.S. 89, 101, 79 L. Ed. 2d 67, 104 S. Ct. 900
(1984). Defendants Beesley, Peck and Christensen are acting under color of the state
by using their political connections with the State Bar and Attorney Generals office.
They are not state officials, and therefore cannot avoid liability by that loophole. The
complaint does not allege that these defendants were acting as state officers or
employees, or that they were in fact state officers or employees and no such inference
can be drawn from the facts of the complaint. They are individuals who are not
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protected by the Eleventh Amendment.
Beesley and Peck next argue that absolute immunity applies to anyone who files
a bar complaint. However, if, after filing a complaint, the complainant comments
publicly or outside the grievance process, then the afforded immunity ceases to exist.
Tobkin v. Jarboe, 710 So. 2d 975 (1998 Fla.) In this case, the facts of the complaint
allege conduct outside of filing a bar complaint. For example:
44. On or about December 23, 1991, Garrett Sutton, Esq.,
confirmed by sworn affidavit that he had been approached by Bruce
Beesley, Esq., an insurance defense attorney with strong personal ties to
International Game Technology, the Nevada State Bar Association, and
the State of Nevada Northern Nevada Disciplinary Panel, and was
encouraged to cause substantial harm to Mr. Mirchs legal career. At the
time, Mr. Beesley was counsel for IGT in a case entitled IGT v. the Gold
Club Casino, CV 91-3641, Second Judicial District Court, State of
Nevada.
45. Mr. Beesley advised Mr. Sutton that IGT would settle with
his client, Dr. Stuart Wyckoff, for $60,000, even though it alleged over
$200,000.00 was owed by the Gold Club Casino to IGT if he would file
a Bar Complaint against Kevin Mirch with the State Bar of Nevada. The
Bar Complaint had to be filed before trial began against IGT and caused
Mr. Mirch severe emotional stress and/or his ability to practice law in
Nevada or any other State.
46. Mr. Sutton declined and advised Mr. Mirch that on December
19, 1991, that he overheard a conversation from between John
Cavanaugh, owner of the Gold Dust West, that Mr. Cavanaugh had been
told or heard that it was IGTs strategy in the IGT v. Gold Club Casino
Case, supra, to win by causing Mr. Mirch serious trouble with the
Nevada State Bar, Northern Disciplinary Panel, so that he would be
unable to litigate or would be so upset that he would be uneffective. The
conduct by Bruce Beesley, Bridget Robb Peck, his partner, and the State
Bar of Nevada, Northern Nevada Disciplinary Panel, was unethical,
civilly actionable, and constituted the crimes of extortion and obstruction
of evidence.
...
72. On October 7, 1998, Pete Sullivan, Esq., attorney working
for Attorneys Bruce Beesley and Bridget Robb Peck filed an affidavit
that admitted that Mr. Mirch was being set up by firms using the Nevada
Supreme Court and the State of Nevada Northern Nevada Disciplinary
Panel in order to avoid losing cases and to obtain clients.
73. In a case entitled Green Tree Vendor Services v. Rutherford,
CV97-05589, a letter was attached to an affidavit which advised Green
Tree to wait before suing, Dr. Rutherford as the Beesley firm was in the
process of causing Mr. Mirch to be disbarred:
2-14-96 TT Erick./ this firm is on hold until Lessees Atty is
suspended or disbarred. Notorious for Filing Counterclaims,
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ETC. Disbarment Proceedings going on right now and they should
know shortly what happened we will advance 2 mo until this
occurs.
8-2-95 Dric cld to discuss ACCT sd debtors Aty is up for
Disbarment-thinks we should wait 30 days and see what happens
feels that there will be a counter claim against us and prob the
law firm sdin past past experience w/this clown. It will cost An
arm and leg Defending SD will follow up w/me in 30 days & we
can make decision.
7-11-95. RE cl F/sid kisster (Gordon & Silver) he cld to adv that
they have complaint ready to be filed but till they should let us
know that kevin mirch is a sociopath & will def counter sue us
& atty firm and will be seeking punitive Damages SD they have
had dealing S w/him before and he is nuts SD will want to depose
me and credit officer and pres of co SD will prob cost quite a bit
to defend -SD we would probably prevail but they are concerned
about the cost & wanted to make us aware of it. SD will have Eric
tough Base w/me when he gets back next wk
[Note: the language is in short form used by the insurance adjuster]
74. This note was accidentally sent to Mr. Mirch.
...
261. Beginning at least as early as November 1985, the exact date
being unknown to Kevin J. Mirch, and continuing thereafter up to and
including the date of the filing of this Complaint, the Defendants have
conspired to inhibit trade and competition in violation of 1 of the
Sherman Act, 15 U.S.C. 1, by engaging in an unlawful combination and
conspiracy to blacklist, use the State Bar of Nevada as a Business Tool
to cause harm to Mr. Mirchs business; and cause a boycott of Mr.
Mirchs business by terminating repeatedly causing false claims to be
filed with the State Bar of Nevada Disciplinary Board, changing the
terms and conditions of disciplinary action imposed or to be imposed
against Mr. Mirch, thus violating due process afforded Kevin J. Mirch,
Esq., by the State Bar of Nevada and Nevada Supreme Courts own
rules and regulations.
262. The Defendants have agreed to prevent the disciplinary
process to be used as a business or fraudulent tool to cause
"non-compliant" attorneys that participate in illegal or improper conduct
which directly affects interstate commerce. "Non-compliant" attorneys
and members of the judiciary are those individuals willing to participate
in the illegal conduct.
See Amended Complaint. Beesley and Peck were advertising their ability to use their
influence over the bar association to impact Mr. Mirchs cases. Because of this misuse
of power, other of Mr. Mirchs cases may be revisited. FRCP 60.
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The above allegations do not pertain to bar complaints Defendants filed against
Mr. Mirch, but other conduct which is not protected by any statutory absolute
immunity. They are obviously using the bar complaints as a litigation tool.
d. The Younger abstention doctrine does not preclude this civil action.
The Defendants next argue that this case must be dismissed pursuant to the
abstention doctrine articulated in Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27
L. Ed. 2d 669 (1971). In support of this argument, Defendants assert that Mr. Mirch
must establish extraordinary circumstances that would warrant deviation from the
Younger abstention doctrine. This is not true. The Younger abstention doctrine does
not apply to preclude federal jurisdiction when the claims alleged in the federal suit
would not be fully adjudicated in the State Bar disciplinary process. The Defendants
rely on Foley v. Alabama State Bar, 648 F.2d 355 (5 Cir. 1981) to claim that the
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abstention doctrine does not apply to state bars. This is a misstatement of the holding
in Foley. In fact, the Foley court held that the district court was not precluded from
jurisdiction even when there was a state bar disciplinary action pending:
Finally, appellees urge us, on the authority of Younger v. Harris, 401
U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971) , to abstain from
resolution of the federal constitutional issues raised by this case; the state
bar disciplinary procedure, they assert, is the proper forum to decide
these issues. Brief for Appellees at 22. There is no merit to this
contention: "Younger dismissal is called for only in those
circumstances where successful defense of a state enforcement
proceeding, initiated before substantial federal proceedings on the
merits had occurred, would fully vindicate the federal plaintiff's
federal right." Morial v. Judiciary Commission of State of La., 565 F.2d
295, 299 (5th Cir. 1977) (en banc) (emphasis added), cert. denied, 435
U.S. 1013, 98 S. Ct. 1887, 56 L. Ed. 2d 395 (1978). There is no
indication that appellants may vindicate their constitutional rights in the
state bar disciplinary proceedings, and thus we have no mandate to
abstain from entertaining this suit.
Foley, supra at 360. Application of the Younger Abstention Doctrine is premature
and does not apply to the claims alleged in Mr. Mirchs first amended complaint.
The State disciplinary matter pending against Mr. Mirch involves one issue:
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whether the suit filed against McDonald Carano violated the ethical rules governing
attorneys in this state. The present suit involves the improper use of the state bar and
other administrative agencies as a litigation tool. The grievance process of the State
Bar is to protect the public, not a litigation tool for adverse attorneys. The First
Amended Complaint explains years of disparate treatment to Mr. Mirch in a number
of forums. This includes not only frivolous state bar complaints, but outright threats
of retaliation by attorneys, and even the State authorities refusal to prosecute an
arsonist who bombed Mr. Mirchs office. The following claims alleged in the First
Amended Complaint will not be vindicated by the bar disciplinary proceedings: (1)
combination and conspiracy in violation of Section 1 of the Sherman act and Section
4 of the Clayton act; (2) Constitutional violation due process; (3) breach of the
covenant of good faith and fair dealing; and (4) tortuous interference with business.
Therefore, the Younger abstention doctrine has no application to the case at bar.
e. The Sherman and Clayton Acts apply against individuals.
Section 1 of the Sherman Act, 15 U.S.C.S. 1, makes unlawful every contract,
combination or conspiracy, in restraint of trade or commerce among the several states.
2, 15 U.S.C.S. 2, makes it unlawful to monopolize, or attempt to monopolize, or
combine or conspire with any other person or persons, to monopolize any part of the
trade or commerce among the several states. Parker v. Brown, 317 U.S. 341, 63 S.Ct.
307, 87 L.Ed. 315 (1943). The court finds nothing in the language of the Sherman Act
or in its history which suggests that its purpose was to restrain a state or its officers or
agents from activities directed by its legislature. Id. Parker v. Brown, 317 U.S. 341,
87 L. Ed. 315, 63 S. Ct. 307 (1943) was the first Supreme Court case to hold that
Congress did not intend the Sherman Act to apply to "state action". But, subsequent
cases, such as Goldfarb v. Virginia State Bar, 421 U.S. 773, 95 S. Ct. 2004, 44 L. Ed.
2d 572 (1975), and Cantor v. Detroit Edison Co., 428 U.S. 579, 96 S. Ct. 3110, 49 L.
Ed. 2d 1141 (1976), have taught us that the exemption judicially created by Parker v.
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Brown has a very limited application.
In the present suit, Defendants claim that the Defendants, as employees and
participants in the disciplinary process, they are state actors. Mot. Dismiss at 9:14-
15. As discussed above, the conduct of the individuals went outside the scope of the
disciplinary process, thereby dissipating any immunity that may have applied (i.e.,
actually advising clients when to file suits because they controlled the disciplinary
process which has very improperly imposed on Mirch). The Defendants used bar
grievances and the threat of bar grievances to gain an advantage in litigation where
Mr. Mirch was opposing counsel. This is not activity that intended or condoned by
the State Legislature. Further, the Defendants argument that the Sherman act does not
apply to individuals is a misstatement of law. The Sherman Act must be taken to be
a prohibition of individual action. Id. The purpose of the Sherman Act is to suppress
the combinations to restrain competition and attempts to monopolize by individuals
and corporations. See Apex Hosiery Co. v. Leader, 310 U.S. 469, 492-93 and n. 15;
United States v. Addyston Pipe & Steel Co., 85 F. 271, affirmed 175 U.S. 211;
Standard Oil Co. v. United States, 221 U.S. 1, 54-58. a state does not give immunity
to those who violate the Sherman Act by authorizing them to violate it, or by declaring
that their action is lawful, Northern Securities Co. v. United States, 193 U.S. 197, 332,
344-47. Because the "transactions which create the need for the particular legal
services in question frequently are interstate transactions," the practice of law is now
regarded as a commercial activity subject to the Sherman Act. Goldfarb v. Virginia
State Bar , 421 U.S. 773, 783-784. Even though many of the named Defendants in this
suit are private parties, the named defendants can only invoke state action immunity
from Sherman Act liability if they can demonstrate that the state has "clearly
articulated as state policy the challenged restraint and has "actively supervised" the
conduct of the individuals charged. Patrick v. Burget, 486 U.S. 94, 100-01, 100 L. Ed.
2d 83, 108 S. Ct. 1658 (1988). Clearly, the state has not authorized the use of the
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disciplinary process as a litigation tool, and has not actively supervised the improper
activity. (I.e., IGT knew Beesley would be able to use his connections).
The fact that the State Bar is a state agency for some limited purposes does not
create an antitrust shield that allows it to foster anti-competitive practices for the
benefit of its members." Goldfard, supra. at 791.
1. The Elements of a violation of the Sherman Act Claim and Clayton
Act are properly plead.
To withstand a motion to dismiss, the plaintiff in a Sherman Antitrust
Conspiracy claim must allege (1) concerted action; (2) by two or more persons; (3)
that unreasonably restrains interstate or foreign trade or commerce. In re NASDAQ
Market-Makers Antitrust Litigation, 894 F. Supp. 703, 710 (S.D.N.Y. 1995).[*20] See
also Ford Motor Co. v. Webster's Auto Sales, Inc., 361 F.2d 874, 878 (1st Cir. 1966)
(noting that an alleged agreement between two or more parties is "fundamental . . . to
any section 1 violation"). To establish a claim brought under the Clayton Act,
Plaintiff must allege that he has suffered "injury of the type the antitrust laws were
intended to prevent." Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489,
50 L. Ed. 2d 701, 97 S. Ct. 690 (1977). Here, the amended complaint alleges
sufficient facts which, when taken as true, constitute a clear violation of those
statutes:
260. Plaintiff incorporates by reference all claims of this
complaint as if more fully set forth herein.
261. Beginning at least as early as November 1985, the exact date
being unknown to Kevin J. Mirch, and continuing thereafter up to and
including the date of the filing of this Complaint, the Defendants have
conspired to inhibit trade and competition in violation of 1 of the
Sherman Act, 15 U.S.C. 1, by engaging in an unlawful combination
and conspiracy to blacklist, use the State Bar of Nevada as a Business
Tool to cause harm to Mr. Mirchs business; and cause a boycott of Mr.
Mirchs business by terminating repeatedly causing false claims to be
filed with the State Bar of Nevada Disciplinary Board, changing the
terms and conditions of disciplinary action imposed or to be imposed
against Mr. Mirch, thus violating due process afforded Kevin J. Mirch,
Esq., by the State Bar of Nevada and Nevada Supreme Courts own
rules and regulations.
262. The Defendants have agreed to prevent the disciplinary
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process to be used as a business or fraudulent tool to cause
"non-compliant" attorneys that participate in illegal or improper conduct
which directly affects interstate commerce. "Non-compliant" attorneys
and members of the judiciary are those individuals willing to participate
in the illegal conduct.
263. Kevin J. Mirch and Mirch & Mirch have suffered the type
of injury that the anti-trust laws were intended to prevent and that flows
from that which makes the Defendants' acts unlawful. The injury reflects
the anti-competitive effect either of the violation or of anti-competitive
acts made possible by the violation.
264. Kevin J. Mirch, Esq. and Mirch & Mirchs professional,
social, economic, and emotional injury and damages coincide with the
public detriment tending to result from the violation anti-trust laws. The
effect of the conspiracy is a diminution in competition in the field of
law, gaming regulation and law. This is particularly true in light of
the fact that the State Bar of Nevada has imposed rules and regulations
that it refuses to follow with respect to Kevin J. Mirch and Mirch &
Mirch solely because he has successfully protected his clients, uncovered
illegal conduct inherent in the manufacturing of gaming devises, and
software, and relied upon contracts entered into with the State Bar of
Nevada that are designed to protect his interest and that of his clients.
265. In addition, the unlawful attacks upon Kevin J. Mirch,
Esq.,s business and privileges will impose a black mark on Kevin J.
Mirchs and Mirch & Mirchs career, which is disclosed in regularly
published legal journals, and similar other matters. The result will be that
Mr. Mirch will be unable to practice or serve as a judge or in many other
positions that are readily available to honest hardworking attorneys.
266. The State Bar of Nevadas Disciplinary Board has caused
this damage to Mr. Mirch as a result of false and malicious State Bar
Disciplinary actions designed to protect preferred attorneys and their
clients from legitimate causes of action. The competitive significance of
Kevin J. Mirchs exclusion from the State Bar of Nevada or hinderence
by repeated false claims must be measured, not just by the particularized
evaluation of his own practice, but also by a general evaluation of the
impact of the restraint on other participants and potential clients who
suffer due to illegal conduct allowed to perpetuate by certain preferred
attorneys such has Bruce Laxalt, Bruce Beesley, Sarah Beth Brown,
Ann Morgan, and others who illegally participate in the hindering
legitimate claims. As a result, the gaming industry in the State of Nevada
is at risk and may fail because of fraud be perpetuated upon customers.
267. Soon after, Kevin J. Mirch was targeted for termination of
his license by Judge Hardesty and his preferred attorneys, and previous
clients; a false order was issued in violation of another order issued by
a Bankruptcy Judge and which had not been appealed and was ignored
by Judge Hardesty; and Mr. Mirch was horrifically attacked in order to
undermine his business and monies due to individuals, entities, pensions
and profit sharing plans, solely to cause Dr. Kenneth Frank and his
counsel to abscond with literally millions of dollars that had previously
been ordered to be delivered to the Santa Barbara Bankruptcy Court.
Because Mr. Mirch chose to follow the Bankruptcy Courts order that
had not been appealed, he has been subjected to 2 years of disciplinary
action without a hearing being held and in direct contravention of his
medical care.
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268. At one point in time prior to Defendants constructive
attempt to terminate Mr. Mirchs license, Mr. Mirch had been called to
testify in Santa Barbara about the Bankruptcy Courts Order. Mr. Mirch
was told that if he testified or disclosed that the money should be repaid
to individuals from which it had been stolen that he would lose his
license, be attacked by the State Bar and be subjected to relentless attacks
by the state bar. All of these threats have occurred. The threats occurred
also when the State Bar was aware that Mr. Mirch was suffering from
severe medical problems. Because Mr. Mirch agreed to testify
"honestly", the State Bar Disciplinary Board, certain preferred
attorneys, and Rob Bare retaliated by constantly attacking Mr. Mirchs
practice. On one occasion Mr. Mirch was attacked for allegedly signing
a false affidavit that he did not sign, was correct, and that he had no
knowledge off. Rob Bare was aware of this improper attack upon Mr.
Mirch and refused to correct the same. Instead, he feared for his own job
and accordingly, participated in conduct that he knew was illegal.
269. The State Bar of Nevada, related entities and individuals
have intentionally caused, by their conduct, a boycott of Mr. Mirchs,
and Mirch and Mirchs legal practice by constructively terminating
his privileges, publishing the constructive termination, and defaming his
abilities to potential and current clients.
270. The boycott of Kevin J. Mirch, and Mirch & Mirch has
had an obvious effect on interstate commerce.
271. This conspiracy has affected a number of attorneys to
believe false statements about Mr. Mirch despite several successful
claims for relief that have benefitted the Reno area from theft in the
gaming, banking, securities, medical, and sexual misconduct in hospitals.
272. Upon information and belief, the attorneys who improperly
participated in the illegal out of state conduct include, but are not limited
to Bruce Laxalt, Bruce Beesely, Bridget Robb Peck, Ann Morgan, Sarah
Beth Brown, among others. If the conspiracy is allowed to continue, it
reasonable to assume that the damages sustained as a result of the same
will not only continue, but increase. Furthermore, the improper
protection of the casino industry by this misconduct will thus cause
Nevadas gaming industry to decline to a point that it has not credibility
other than professional wrestling.
273. Under 1 of the Sherman Act the Defendants have
established a number of illegal agreements, that have a direct impact
upon interstate commerce via the conduct of their clients in
conjunction with their own illegal treatment. A number of honest
attorneys have moved out of the State of Nevada in thereby depriving
themselves of practicing in that state and depriving their clients of
receiving the attorney of their choice. Thus the conduct and
agreements created by the Defendants have denied interstate
commerce to clients. These same agreements reasonably will impact the
clients constitutional rights if not stopped.
274. In addition, because the conspiracy has actually been
successful, Kevin J. Mirch and Mirch & Mirch has lost substantial
business not only in California but constructively in various other
locations throughout the United States.
275. The Defendants conspired with others to abuse the
Nevada State Bar Disciplinary process by waiting over 2 years before
initiating an action and only shortly before large actions against IGT and
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other politically powerful entities are ready for trial.
276. Since the targeting and eventual constructive disciplinary
attacks upon the Plaintiffs and continuing today, Kevin J. Mirch and
Mirch & Mirch have been restrained in their ability to make his high
quality services readily and fully available to the local, out of Washoe
County, and out of State of Nevada public; therefore the public need for
business litigation focusing upon fraudulent conduct will not be met.
277. Defendants have depleted the resources of Kevin J. Mirch,
and Mirch & Mirch who, even where granted his due process rights
privileges, and review requested, has expended the financial resources
required to remain in business or to compete successfully in resisting or
overcoming the Defendants' conspiracy. The conspiracy intends to
deplete the resources of Mr. Mirch in order to cause fraudulent business
affairs to continue within the state of Nevada.
278. Defendants have delayed the ultimate granting of due process
rights, privileges, and review so as to damage severely Kevin J. Mirchs
ability to compete or remain in business. By delaying the procedures
required in their own bylaws, Kevin J. Mirchs administrative procedures
have been ongoing for over 2 years. State Bar Rules require matters to be
resolved in 45 days. As a result he has lost a substantial amount of his
business and caused severe medical problems to persist for prolonged
periods of time.
279. The effect of the combination and conspiracy has been and
will be, among other things, to prevent and restrain competition in
the furnishing of business litigation focusing on fraudulent
manufacture of gaming equipment, software, and the theft of money from
businesses by bank and other entities.
280. As a direct and proximate result of the aforesaid
combination and conspiracy, Kevin J. Mirch has expended considerable
sums of money which he would not otherwise have been required to
spend due to the necessity of overcoming the illegal attempts by the
Defendants to deny Kevin J. Mirch and Mirch & Mirch their right to a
substantial number of clients their constitutional rights.
281. As a result of the combination and conspiracy to restrain
trade and competition by the Defendants, Kevin J. Mirch has been caused
to suffer and will continue to suffer substantial damages to his reputation
and practice, all to his detriment.
282. The Defendants concerted efforts to eliminate Kevin J.
Mirch and Mirch & Mirch as a competitor constitutes a group
boycott in violation of Section 1 of the Sherman Act. By eliminating
Kevin J. Mirch and Mirch & Mirch as a competitor, the boycott
successfully reduced competition for the Defendants' and other
compliant attorneys.
283. Kevin J. Mirch is unable at this time to state finally the
amount of damages sustained to date and those to be sustained in the
future by reason of the illegal acts of Defendants as set forth herein.
Kevin J. Mirch would show that, but for the illegal combination and
conspiracy of the Defendants as alleged herein, as of the date of the
filing of this lawsuit, he has suffered damages in an amount in excess
of $75,000,000. Kevin J. Mirch is further entitled to three times the
damages determined to have been sustained, simple interest on actual
damages as allowed by law, costs of suit and attorney's fees for the trial
or hearing in this Court, an additional amount in the event an appeal is
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taken to the Court of Appeals, and an additional amount for an appeal to
the United States Supreme Court and a cost of retraining for Kevin J.
Mirch on those procedures he has been denied since his constructive
termination from the State Bar of Nevada.
284. The Defendants conspired with one another to
monopolize or attempt to monopolize the legal business in violation
of 15 U.S.C.A. 1 and 2. The Defendants have conspired to restrain
competition and inhibit trade, including denial of competitive
advantages or opportunities, in violation of 15 U.S.C. 15 and 26.
285. The Defendants conspired with one another to perform false
and malicious peer review against Kevin J. Mirch in order to cause the
loss of his privileges to practice law. They did so by using and
performing reviews by persons who were unqualified and/or who were
biased competitors and who were motivated by anti-competitive intent.
286. These Defendants have published false and inaccurate
written reviews, biased testimony, and false reports, in many cases
contrary to well-established legal principles including violation of rules,
regulations, and policies, for the purpose of harming Kevin J. Mirch,
Mirch & Mirch all in an effort to pursue their anti-competition goal of
causing the loss of privileges and goal of causing each attorney to
become an "compliant individual fearful of protecting his or her clients
constitutional rights".
287. Defendants have knowingly, willingly, and maliciously
sought to destroy Kevin J. Mirchs, and Mirch & Mirchs reputation and
legal practice in order to inhibit or restrain competition from Kevin J.
Mirch, and Mirch & Mirch. This is a pattern of conduct which can be
established by the testimony of other lawyers and competitors. Such
conduct requires an award of exemplary damages, treble damages and
attorneys fees against the defendants, in order to discourage such conduct
in the future.
288. Plaintiff has suffered damages in excess of $75,000, the exact
amount of which will be determined at the time of trial.
289. Plaintiff has been required to retain counsel and as a such is
entitled to reasonable attorney fees and costs.
290. Kevin J. Mirch is entitled to recover threefold the damages
he sustained, and the cost of suit, including attorneys fees, pursuant to
Section 4 of the Clayton Act. 15 U.S.C. 15 (1988). In addition pursuant
to Section 16, Kevin J. Mirch seeks declaratory and injunctive relief as
prayed for herein. IS U.S.C. 26(1988).
See First Amended Complaint. These allegations should not be ignored. These
Defendants have used their influence over the Bar and Attorney Generals office to
destroy Mr. Mirchs business, adversely affecting significant cases (i.e., bankruptcy
fraud, litigation fraud consisting of changing transcripts in order to improperly obtain
summary judgment, and to protect the gaming industry which is stealing money
through marker fraud, Mattes v. Park Place, and protecting the largest gaming
manufacturer in Nevada, IGT who sell machines with defective boards. In order to
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avoid liability in high profile cases, Defendants have to attack and dismantle Mr.
Mirchs legal practice. Their conduct is outrageous and must be tried to protect the
integrity of the judicial system. Despite these attacks, Mr. Mirch has been very
successful over the years. However, the constant attacks have severely impacted his
health. Because of their political clout, these Defendants have no compunction in
falsely advising this Court that Mr. Mirch feigned a stroke. Normally, such an
outrageous statement would be subject to sanctions. Law cannot be a beauty contest
where lawyers advertise their ability to win cases based on political clout, instead of
hard work.
Clearly, the elements for a Sherman Act claim are sufficiently plead to survive
a motion to dismiss.
2. Poliner v. Texas is an example of a very successful suit in which
Sherman and Clayton Acts were brought against the peer doctors in
a disciplinary matter.
The case of Poliner v. Texas Health Systems, et al. United States District Court
for the Northern District of Texas, Dallas Division, case number 3-00CV1007-D, was
a case brought by a doctor against the health system and individual doctors who
engaged in malicious peer review pertaining to Dr. Poliners privileges to practice
medicine. The doctors used the peer review process to pursue their own personal
interests and benefit their independent interests in their private practice of medicine.
The plaintiff brought claims under the Sherman and Clayton acts against the individual
doctors. See Exhibit 1, Complaint
The complaint survived a motion to dismiss, the case was tried before a jury,
with a jury verdict in favor of the plaintiff in the amount in excess of $300 million,
which was later recused to approximately $21 million.
f. Donald Christensen is a proper defendant in this action
Defendants final argument is that Donald Christensen is entitled to be
dismissed from this action, claiming that Mr. MIrch has failed to allege specific facts
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against Mr. Christensen. To the contrary the first amended complaint contains the
following specific allegations against Mr. Christensen which are sufficient to give
notice to Mr. Christensen of the claims against him:
5. Defendant Donald Christensen, at all times relevant hereto
was a resident of Clark County, State of Nevada.
6. Defendant DOES I- X at all times relevant hereto were
residents of Washoe County, State of Nevada. Donald Christensen
works for the City of Reno, City Attorneys Office.
299. The following conduct has violated Mr. Mirchs due process
rights on a continuous basis:
g. Mr. Christensen, Esq., who works for Reno City
Attorneys office and had a conflict of interest which
prevented his involvement in this case.
h. Mr. Christensen was involved in the acceptance of
contractors fees for homes in the amount of $1,000.00 per
property. Mr. Mirch was involved in a dispute that
requested an accounting of the $1,000.00. Because that
money could not be found, a bond was issued which paid
for the missing funds. Mr. Christensen has a conflict
since he is involved in the missing funds which caused a
bond offering to be voted upon and eventually caused that
money to be used to pay for the missing monies.
I. Currently, before the Reno City Attorneys Office is a
claim wherein Mr. Mirch represents Mr. Oberg in a dispute
over an expansion at a Home Depot, that had previously
been resolved, but the Defendants have changed the terms
by selling parts of the property without proper notice
regarding the same. Mr. Christensens involvement in
that matter makes his involvement in the Mirch
Disciplinary matter biased. Mr. Christensen recognized
this issue by writing a letter questioning the discrepancy.
Despite acknowledging the bias, Defendants have
refused to remove competitors, previously used
attorneys in an adversarial matter.
See First Amended Complaint.
The First Amended Complaint alleges a conflict of interest by Mr. Christensen,
which Mr. Christensen admitted. Mr. Christensen was part of the State Bar
Disciplinary process that determined that a formal grievance should proceed further.
Nevada is a notice pleading state. All Mr. Mirch has to do is give Mr. Christensen
notice of the claims. The First Amended Complaint meets this standard. Nonetheless,
in the event this Court determines that additional allegations are necessary, Plaintiff
prays for leave to amend the complaint prior to entering any dismissal.
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CONCLUSION
Mr. Mirch clearly conducted a legal investigation before filing his complaint.
Because Mr. Mirchs practice focuses on litigation and business fraud in regulated
areas (e.g., hospital fraud, marker theft, gaming equipment defects, altering transcripts
by sister of opposing counsel, etc.), he is a target. These Defendants have so maligned
Mr. Mirch that the Court was easily mislead to believe that Mr. Mirch had not suffered
a stroke. The Defendants confidence in misleading courts has been a litigation tool
used to adversely affect important cases (e.g., Clark v. HCA, supra, where children
and adults were molested at Truckee Meadows Hospital through blow hole therapy.
These are important cases which should not be decided by false arguments and
political connections. Mr. Mirchs practice should not be destroyed by political
influence, threats, and his health being seriously impacted by stress. This case should
be tried, and changes made to the system so that other attorneys are not attacked
simply for protecting their clients. The Defendants should not be able to make claims
of controlling the judiciary or the State Bar disciplinary process as a means of
obtaining clients. Such conduct should be severely punished, This case is important
as it affects the entire judicial system. Immunity does not protect the Defendants from
liability in this case.
There are number of exceptions when individuals acting under the color of state
law act outside the scope of his/her protected activities. This is precisely the case
here. The Defendants have overreached and abused the state disciplinary process for
their own personal and financial gain. This conduct is not afforded immunity in the
State of Nevada.
Furthermore, this Court is not affected by the Younger abstention doctrine. The
allegations contained in the present claim have not and will not be adjudicated in the
State Bar Disciplinary matter. Contrary to the Defendants claims, this case is not
solely an attempt to avoid the disciplinary process, but alleges causes of actions
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against the State Bar and individuals which will not be addressed in any disciplinary
action. The Defendants have lost any immunity they may have enjoyed by their abuse
of the legal system. This conduct cannot be condoned.
Wherefore, Plaintiff respectfully requests that Defendants Motions to Dismiss
be denied. Alternatively, Plaintiff requests leave to amend the First Amended
Complaint in the event this Court finds deficiencies in the same.
DATED this 10 day of October, 2006.
th
LAW OFFICE OF MIRCH & MIRCH
By:_________/s/________________
NV SBN: 923
320 Flint Street
Reno, NV 89501
Plaintiff
Case 3:00-cv-01007 Document 1 Filed 05/11/2000 Page 1 of 58 Case 3:05-cv-00641-RLH-RAM Document 46-2 Filed 10/09/06 Page 1 of 58

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