to apply for pro hac vice admission does not mean that the State Bar has
determined that these residents are incompetent to practice law.
Instead, as defendants argue, it is rational for the State Bar to limit
pro hac vice admission to nonresidents to prevent California residents
from using pro hac vice to circumvent this state's stringent bar
membership requirements. Plaintiffs question the wisdom of adopting such
a Rule, and note both that California has afforded other professions
reciprocal licensing and that legal groups have recommended that
California grant full reciprocity for qualified and experienced
sister-state' attorneys. However, the issue before the Court is not
whether California has promulgated the best rule or whether California's
rule can even be considered wise. Instead, the Court need only determine
whether there exists a rational basis for Rule 983. In the Court's view,
it is rational for the State Bar to require California residents who wish
to practice law in the state to fulfill a number of prerequisites,
including successful completion of the California Bar Examination. It is
also rational to exempt nonresident attorneys from fulfilling all of
these requirements in the interest of allowing California residents their
counsel of choice. Accordingly, defendants motion to dismiss plaintiffs
equal protection claim is GRANTED.
(b) Privileges and Immunities Clause
Plaintiffs argue that insofar as Rule 983 discriminates on the basis of
residence, it violates the Privileges and Immunities Clauses of Art. IV,
§ 2, the Fourteenth Amendment, 42 U.S.C. § 1983, and the
California Constitution.*fn12 The Court has already discussed and
dismissed plaintiffs' claims of privileges and immunities under the
Fourteenth Amendment. As for plaintiffs' claim that Rule 983 violates the
privileges and immunities clause of 42 U.S.C. § 1983, plaintiffs are
mistaken in their belief that § 1983 contains a privileges and
immunities clause. Section 1983 is not itself a source of substantive
rights, but merely provides a method for vindicating federal rights
elsewhere conferred. See Graham v. Connor, 490 U.S. 386, 393-94, 109
S.Ct. 1865, 1870, 104 L.Ed.2d 443 (1989). Accordingly, the Court focuses
on plaintiffs claims that Rule 983 violates the Privileges and Immunities
Clause of Article 4, § 2 and the California Constitution. As
plaintiffs advance identical arguments under the federal and state
constitutions, the analysis for both is the same.
In support of their claims, plaintiffs cite the Supreme Court's holding
in Piper, 470 U.S. 274, 105 S.Ct. 1272, 84 L.Ed.2d 205 (1985), and argue
that California's prohibition on limited, pro hac vice appearances by
residents is similar to New Hampshire's restriction on the practice of
law by nonresidents in Piper.
Defendants argue that Piper and the related cases regarding residency
requirements for bar admission are in apposite for two reasons. First,
defendants note that nothing in these cases suggests that residents of a
state can invoke the Privileges and Immunities Clause to challenge
alleged discrimination against residents and in favor of nonresidents.
Second, defendants argue that Piper and the related cases involved
challenges to residency requirements by otherwise qualified attorneys who
were precluded from practicing law solely on the basis of their
residence. As the Supreme Court stated in Supreme Court of Virginia v.
Friedman, "Piper establishes that a nonresident who takes and passes an
examination prescribed by the State, and who is otherwise qualified for
the practice of law, has an interest in practicing law that is protected
by the Privileges and Immunities Clause." 487 U.S. 59, 65, 108 S.Ct.
2260, 2264, 101
L.Ed.2d 56 (1988). In the instant case, plaintiffs are prohibited from
practicing law in California not because of their residence, but because
they have not fulfilled the requirements for admission to the State Bar
and therefore are not "otherwise qualified."
The Court sees no reason to depart from its reasoning in McKenzie v.
George, C 97-0403 SI finding that plaintiffs did not state a claim under
the Privileges and Immunities Clause. In McKenzie, the Court noted that
plaintiffs' Privilege and Immunities arguments had been rejected
previously in Morissette v. Yu. The district court in Morissette held as
To show that the Privileges and Immunities Clause bars the use of
residency to deny a lawyer the privilege of practicing, Plaintiffs cite
three cases: Supreme Court of New Hampshire v. Piper, 470 U.S. 274, 105
S.Ct. 1272, 84 L.Ed.2d 205 (1985), Supreme Court of Virginia v.
Friedman, 487 U.S. 59, 108 S.Ct. 2260, 101 L.Ed.2d 56 (1988), and
Barnard v. Thorstenn, 489 U.S. 546, 109 S.Ct. 1294, 103 L.Ed.2d 559
(1989). However, in all three cases, the Court held that states could
not require some form of residency as a qualification for admission to
the bar. The Court did not address whether the Privileges and
Immunities Clause permitted states to accord nonresident lawyers
limited privileges to practice law that it denied residents.
The better view is that these cases do not imply
that the Privileges and Immunities Clause bars states
from granting nonresident lawyers limited privileges
denied to residents. In Barnard, the Court expressly
affirmed that the Clause prevents discrimination
against nonresidents. See 109 S.Ct. at 1299.
Plaintiffs do not cite any cases in which the Clause
has been held to prevent discrimination in favor of
nonresident lawyers. Moreover, in other contexts, the
Court has concluded that the Constitution does not
require a state bar to admit lawyers simply because
they have been admitted to another state bar. See Leis
v. Flynt, 439 U.S. 438, 99 S.Ct. 698, 701, 58 L.Ed.2d
717 (1979). For this reason, Plaintiffs challenge
based on the Privileges and Immunities Clause is
Morissette, slip op. at 11 (C.D.Cal. Nov. 16, 1992).
Plaintiffs provide no compelling reason to reject the district court's
holding in Morissette. As such, consistent with Judge Davies holding in
Morissette, the Court holds that plaintiffs have failed to state a claim
under the Privileges and Immunities Clauses of Article IV and the
California Constitution and GRANTS defendants' motion to dismiss these
(c) Commerce Clause
Plaintiffs argue that Rule 983 violates the Commerce Clause because it
is a protectionist measure designed to limit competition between in-state
and out-of-state lawyers. Plaintiffs concede in their complaint the
"mutually reinforcing relationship between the privileges and immunities
Clause and the Commerce Clause." Complaint ¶ 43.
For the same reasons as the Court has rejected plaintiffs' Privileges
and Immunities argument, it also rejects plaintiffs' Commerce Clause
argument. In particular, when looking at the same alleged discrimination
under the different clauses, the same standard applies. See Giannini v.
Real, 911 F.2d 354, 358 (9th Cir. 1990) (citing Sestric v. Clark,
765 F.2d 655, 664 (7th Cir. 1985), cert. denied, 474 U.S. 1086, 106
S.Ct. 862, 88 L.Ed.2d 901 (1986)); Morissette, slip. op. at 13 (C.D.Cal.
May 26, 1993). In sum, plaintiffs have failed to state a claim under the
Commerce Clause. Defendants' motion to dismiss this claim is therefore
(d) First Amendment
Plaintiffs argue that Rule 983 violates their First Amendment rights to
speech, assembly, association and petition for redress of grievances.
Plaintiffs largely repeat
the arguments made in connection with their Equal Protection claims that
Rule 983 violates the First Amendment. For the reasons set forth above,
the Court rejects those arguments. Additionally, plaintiffs argue that
Rule 983 constitutes an impermissible prior restraint because it directly
regulates and censors plaintiffs' speech. As stated above, simply because
Rule 983 regulates the practice of law in California does not mean that
Rule 983 implicates the First Amendment. Defendants' motion to dismiss
this claim is therefore GRANTED.
(e) Due Process
Finally, plaintiffs argue that Rule 983 violates their due process
rights under the United States and California Constitutions by presuming
that out-of-state attorneys not licensed in California are more "fit" to
practice law than resident attorneys who are not licensed by the
California State Bar. Plaintiffs argue that the Court should reexamine
its holding in McKenzie v. George, C 97-0403 SI in light of "numerous"
cases cited by plaintiffs which, according to plaintiffs, hold that there
is a fundamental right to practice law. Plaintiffs argue that based upon
a review of these cases, "there can be no doubt" that the Supreme Court's
holding in Leis v. Flynt, 439 U.S. 438, 99 S.Ct. 698, 58 L.Ed.2d 717
(1979), has been overruled sub silentio. This argument is directly
contradicted by the Supreme Court's express recognition in Piper that
"Our conclusion that Rule 42 violates the Privileges and Immunities
Clause is consistent with Leis v. Flynt." 470 U.S. at 283 n. 16, 105
S.Ct. at 1278 n. 16. Moreover, as discussed earlier, plaintiffs' reliance
on United States v. Ries, 100 F.3d 1469 (9th Cir. 1996) and similar cases
is misplaced, as these cases hold that a criminal defendant's Sixth
Amendment right to counsel includes the right to have out-of-state
counsel appointed pro hac vice, but do not hold that a lawyer has a
fundamental right to pro hac vice admission. See, e.g., Fuller v.
Diesslin, 868 F.2d 604, 606 (3d Cir.), cert. denied, Perretti v. Fuller,
493 U.S. 873, 110 S.Ct. 203, 107 L.Ed.2d 156 (1989); U.S. v. Panzardi
Alvarez, 816 F.2d 813, 816 (1st Cir. 1987).
Plaintiffs' reliance on Kirkland v. National Mortgage Network,
884 F.2d 1367, 1371 (11th Cir. 1989) is similarly incorrect, as Kirkland
held that once admitted pro hac vice, a lawyer enjoys the same procedural
due process rights as other attorneys before being disqualified from a
matter. Contrary to plaintiffs' contention that Kirkland provides support
for finding that Leis has been overruled sub silentio, the Kirkland court
recognized that under Leis, "no Fourteenth Amendment property interest is
implicated by a state court's refusal to admit an attorney pro hac vice."
Kirkland, 884 F.2d at 1371. Thus, plaintiffs' argument that Rule 983's
"automatic disqualification provisions" constitute "glaring federal due
process violations" is unavailing. Plaintiffs' Motion for Summary
Plaintiffs argue that the due process clause contained in the
California Constitution provides even greater protection than its federal
counterpart in that California courts have ruled that an individual's
"dignity" must be considered in assessing his or her right to due
process. See People v. Ramirez, 25 Cal.3d 260, 267, 158 Cal.Rptr. 316,
599 P.2d 622 (1979). In People v. Ramirez, the California Supreme Court
held that "when an individual is subjected to deprivatory governmental
action, he always has a due process liberty interest both in fair and
unprejudiced decision-making and in being treated with respect and
dignity." Id. at 268, 158 Cal.Rptr. 316, 599 P.2d 622. While the
California Supreme Court may have recognized an additional factor to
consider in assessing what due process requires, it is nonetheless clear
that due process is not implicated unless an individual is "subjected to
deprivatory governmental action." The instant plaintiffs have not
suffered any deprivation because they do not have a right to practice pro
Plaintiffs' argument is premised on the false contention that the right
pro hac vice is a fundamental right, triggering heightened review under
the Due Process Clause. As stated above, there is no fundamental right to
appear pro hac vice. See Leis, 439 U.S. at 443, 99 S.Ct. at 701
Ultimately, plaintiffs provide no persuasive rationale for subjecting
Rule 983 to exacting scrutiny under the Due Process Clause or for
determining that Rule 983's presumption in favor of out-of-state
attorneys is irrational. The Court therefore GRANTS defendants' motion to
dismiss plaintiffs' due process claims.
(4) Leave to Amend
The Court grants defendants' motions to dismiss without leave to amend
because the Court determines that plaintiffs will be unable to cure the
substantial defects in their claims by amendment.
2. Plaintiffs' Motion for Summary Judgment
In light of the Court's findings set out above, the Court hereby DENIES
plaintiffs' motion for summary judgment.
3. Defendants' Motions for Sanctions
Defendants' motions for sanctions against plaintiffs and their
counsel, Giannini, were originally scheduled for argument on July 24,
1998. At the request of Giannini and his lawyer, Jeffrey L. Russell, the
Court continued the hearing on defendants' motions for sanctions until
September 4, 1998 in order to allow plaintiffs and Giannini additional
time to oppose the motions. By order dated August 4, 1998, the Court
directed the parties to focus their briefing on the pre-filing sanctions
requested by the State Bar defendants. Defendants filed supplemental
papers on August 21, and plaintiffs filed supplemental papers with the
Court on August 28.
A. Legal Standard
Rule 11 provides in relevant part:
Every pleading, motion, and other paper . . . [filed
with the Court] shall be signed by at least one
attorney of record [or the party. . . .] The signature
of an attorney or party constitutes a certificate by
the signer that the [paper . . .] is  well grounded
in fact and is  warranted by existing law or a good
faith argument for the extension . . . of existing law
. . . and  that it is not interposed for any
improper purpose. . . .
If a . . . paper is signed in violation of this rule,
the court . . . shall impose an appropriate sanction
The test imposed by Rule 11 is an objective one. See Zaldivar v. City
of Los Angeles, 780 F.2d 823, 831 (9th Cir. 1986). The certification
requirements of Rule 11 are violated "if the paper filed . . . is
frivolous, legally unreasonable or without factual foundation, even
though . . . not filed in subjective bad faith." Id.
Under this objective, analytic approach to Rule 11, a cause of action
is not "warranted by law" where no "plausible, good faith argument can be
made by a competent attorney" in support of the proposition asserted.
Id., at 829, 833. Under the objective approach to Rule 11, a finding of
improper purpose can be determined following the Court's own review of
the facts and the law: Where there is no legal or factual basis for a
claim, improper purpose may be deduced. See Huettig & Schromm, Inc. v.
Landscape Contractors Council, 790 F.2d 1421, 1427 (9th Cir. 1986).
Similarly, where there is a basis for a claim in law and fact, the
"subjective intent of the pleader . . . is of no moment." Zaldivar, 780
F.2d at 830. The current version of Rule 11 "subject[s] litigants to
potential sanctions for insisting upon a position after it is no longer
tenable. . . ." Advisory Committee Notes on Rule 11. See also Ridder v.
City of Springfield, 109 F.3d 288 (6th Cir. 1997).
When a court imposes sanctions, the type and amount of the sanctions
remain largely within the discretion of the Court. See Hudson v. Moore
Business Forms, Inc., 898 F.2d 684, 686-87 (9th
Cir. 1990); Golden Eagle Distributing Corp., 801 F.2d at 1536, 1540.
All defendants have filed motions for sanctions against plaintiffs and
plaintiffs' attorney, Giannini, on the grounds that the instant lawsuit is
legally frivolous and was brought with an improper purpose.*fn13
Defendants argue that the long history of Giannini's litigation "proves
without a doubt" that Giannini's complaint is frivolous and that he was
aware at the time of filing this current complaint that several courts,
including this Court, had dismissed the identical arguments raised in
this case. Defendants contend that plaintiffs' and Giannini's improper
purpose is evidenced by plaintiffs' acknowledgment that they filed the
instant case to relitigate the issues presented in McKenzie v. George, C
Defendants argue that this case is similar to the situation presented
in Roundtree v. United States, 40 F.3d 1036 (9th Cir. 1994). In
Roundtree, the Ninth Circuit affirmed sanctions against an attorney who
filed numerous lawsuits with different plaintiffs, alleging in each case
that the Federal Aviation Administration did not have authority to
suspend a pilot's license. In reviewing the award of sanctions, the Ninth
To be sure, this is not a case where the same
plaintiff has sued over and over again, but that is a
distinction without a difference. It is of an almost
worse stripe because a lawyer has been able to beguile
plaintiff after plaintiff into coming along with him
as he rides his hobbyhorse against the government. We
cannot say that the district court abused its
discretion when it imposed sanctions upon Smith.
Id. at 1040. The court noted that in addition to Roundtree, Smith had
previously filed six different lawsuits with different plaintiffs in five
judicial circuits. "Each time he has induced a plaintiff and forced the
government to go through essentially the same expensive exercise; each
time he has forced the courts to adjudicate essentially the same issues."
Id. In the instant case, defendants argue, the argument for sanctions
against Giannini is even stronger, as Giannini himself has acted as a
plaintiff in a number of his cases.
Defendants seek sanctions in the form of an order enjoining Giannini
from filing any further actions or papers, either as an attorney or
party, in any court regarding admission to and the regulation of the
practice of law in the State of California without first obtaining leave
of the chief or presiding judge of that court. Defendants argue a
pre-filing order is necessary because monetary sanctions are insufficient
to deter Giannini's continued pursuit of frivolous actions. In Morissette
v. Yu, the district court sanctioned Giannini in the amount of
$2,000.00. These sanctions were later reduced by a different judge to
requiring Giannini to perform 200 hours of community service and making a
written apology to Judge Davies, the district judge in Morissette. On
appeal, the Ninth Circuit sanctioned Giannini and assessed double costs.
Defendants argue that despite these sanctions, Giannini had continued his
course of repeatedly litigating the same issue, always without success.
Defendants argue that this Court has the authority to impose a
pre-filing sanction on Giannini pursuant to Civil Local
Rule 11-7. That rule provides in relevant part,
If an attorney practicing before this court engages in
conduct which may warrant discipline or other
sanctions, the court or any judge may initiate
proceedings for contempt under Title 18 of the United
States Code and Federal Rule of Criminal Procedure
42. After reasonable notice and an opportunity to show
cause to the contrary, the court may take any other
appropriate disciplinary action against the attorney.
Defendants contend that this Court's August 4, 1998 order constituted
reasonable notice to Giannini that the Court is considering entering a
pre-filing order against him and offered an opportunity to show cause to
In addition to the Court's authority under Local Rule 11, the Ninth
Circuit has recognized statutory authority to issue pre-filing
injunctions like the one requested by defendants. In Moy v. United
States, 906 F.2d 467 (9th Cir. 1990), the court held that courts may
issue pre-filing injunctions pursuant to 28 U.S, C. § 1651 against
litigants who have filed numerous, patently meritless lawsuits. See also
Wood v. Santa Barbara Chamber of Commerce, Inc., 705 F.2d 1515, 1524 (9th
Cir. 1983) ("district courts do have the power to reinforce the effects
of [collateral estoppel and res judicata] by issuing an injunction
against repetitive litigation"), cert. denied, 465 U.S. 1081, 104 S.Ct.
1446, 79 L.Ed.2d 765 (1984).
Plaintiffs' opposition to defendants' motions for sanctions consists of
a declaration filed by GianniniZ's counsel, Jeffrey Russell,*fn15 as
well as an untimely opposition filed August 28, 1998. In the interest of
allowing plaintiffs and Giannini their full opportunity to be heard on
the matter, the Court will consider plaintiffs' untimely opposition.
Russell states in his declaration that based upon his review of the
pleadings, court orders, and other related documents in McKenzie v.
George, C 97-0403 SI and this case, it is Russell's opinion that
defendants' motions for sanctions are "aimed to censor and retaliate"
against Giannini, and that this lawsuit is not frivolous. Russell states
that it is his belief that the Ninth Circuit has never adjudicated
whether Rule 983 is lawful. Russell states it is his belief that the
instant case is "necessary and not frivolous" for three reasons: (1)
"changes in the law" since the Court decided McKenzie v. George; (2) the
plaintiffs in that case "were denied their full and fair opportunity to
appeal as a matter of right" because they did not receive the Court's
November 5, 1997 order and judgment; and (3) this Court did not address a
number of arguments and case law presented by the plaintiffs in McKenzie
v. George in the plaintiffs' numerous motions to vacate the July 22, 1997
In the opposition filed on August 28, 1998, plaintiffs argue that
defendants are themselves to blame for the instant lawsuit because they
did not provide timely notice to Giannini of this Court's November 5,
1997 judgment. Plaintiffs also repeat many of their substantive arguments
presented in their counter motion for summary judgment, including citing
Governor Wilson's criticism of the State Bar and "changed circumstances"
such as the invalidation of several unrelated California Rules of Court.
Plaintiffs also contend that the constitutionality of Rule 983 has never
been ruled upon in a published opinion and that therefore the instant
action is not frivolous.
The Court rejects plaintiffs' arguments and finds that there is
abundant evidence that this case is legally frivolous and was filed for
an improper purpose. At a minimum, plaintiffs' Privileges and Immunities
claims have been rejected not only by this Court in McKenzie v. George,
but the court in Morissette v. Yu. As discussed earlier in connection
with defendants' motions to dismiss, neither the alleged "changes in the
law" nor the case law that this Court allegedly ignored in McKenzie v.
George change the fact that plaintiffs' claims are without merit and that
plaintiffs cannot state a claim. In fact, plaintiffs' arguments regarding
"changed circumstances" are themselves frivolous: for example, Governor
Wilson's criticism of the State Bar has no bearing on the
constitutionality of Rule 983. The fact that plaintiffs could not appeal
the judgment in McKenzie v. George due to errors by Giannini does not
allow plaintiffs to file two more lawsuits raising virtually identical
claims on virtually identical grounds.
For the foregoing reasons, the Court concludes that it is appropriate
to award sanctions against Giannini in the form of a pre-filing
requirement. The Court declines to award monetary sanctions, finding that
such sanctions have not deterred Giannini in the past. The Court hereby
ORDERS as follows:
Joseph R. Giannini is hereby ENJOINED from filing any further actions,
either as an attorney or a party, in the United States District Court for
the Northern District of California, regarding admission to and the
regulation of the practice of law in the State of California without
first obtaining leave of the Chief Judge of this court. If Giannini
wishes to file further actions regarding admission to and the regulation
of practice of law in California, Giannini must attach a copy of this
order to his application for leave to file such actions and supply a
declaration supporting the application stating: (1) that the matters
asserted in the new action have not previously been raised by him, as an
attorney or a party, and disposed of on the merits by any court, state or
federal; (2) that the claims are not frivolous or made in bad faith; and
(3) that Giannini has conducted a reasonable investigation of the facts
and certifies that they are accurate. Failure to comply with any of these
conditions shall be sufficient grounds to deny the application or dismiss
the action, and any violation of this injunction may be treated as
contempt of court.
For the foregoing reasons, the Court hereby ORDERS as follows:
(1) Defendants' motion to dismiss the complaint is GRANTED WITHOUT LEAVE
(2) Plaintiffs' motion for summary judgment is DENIED,