MICHAELIS v. NEBRASKA STATE BAR ASS'N

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Docket Number

No. 83-1766.

Attorney(S)

Paul L. Douglas, Atty. Gen., Melvin K. Kammerlohr, Asst. Atty. Gen., Lincoln, Neb., Michael McGill, Robert L. Lepp, of McGill, Koley, Parsonage Lanphier, P.C., Charles F. Gotch and Dennis R. Riekenberg, of Cassem, Tierney, Adams, Gotch Douglas, Omaha, Neb., for appellees. Rory Lee Michaelis and Ken L. Michaelis, pro se.

Judges

Jesse Smith Henley
George Gardner Fagg

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Smart Summary

Factual and Procedural Background

Appellant Ken L. Michaelis was disbarred for actions during his 1978 campaign for County Attorney of Cuming County, Nebraska (State ex rel. Nebraska State Bar Association v. Michaelis, 210 Neb. 545, 316 N.W.2d 46, cert. denied, ___ U.S. ___, 103 S.Ct. 27, 74 L.Ed.2d 42 (1982)). Following disbarment Michaelis filed two federal civil rights actions alleging deprivation of various rights. His initial complaint was dismissed without prejudice with leave to amend for failure to comply with Fed.R.Civ.P. 8. He filed a second action and an amended complaint substantially similar to the initial pleading. After consolidated motions to dismiss, the district court dismissed both complaints with prejudice for persistent failure to comply with Rule 8 and for lack of subject matter jurisdiction. Michaelis appealed; the Eighth Circuit considered the record and affirmed the dismissals.

Legal Issues Presented

Whether the district court properly dismissed the complaints with prejudice for refusal to comply with the Federal Rules of Civil Procedure (Rule 8).
Whether the district court lacked subject matter jurisdiction because the complaints sought federal review of issues already litigated in the Nebraska Supreme Court's disciplinary proceedings.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State ex rel. Nebraska State Bar Association v. Michaelis, 210 Neb. 545, 316 N.W.2d 46, cert. denied, ___ U.S. ___, 103 S.Ct. 27, 74 L.Ed.2d 42 (1982)	Establishes the appellant's disbarment (factual predicate).	Used to show the disciplinary proceedings that gave rise to the subsequent federal filings.
Koll v. Wayzata State Bank, 397 F.2d 124, 127 (8th Cir. 1968)	Ordinarily dismissal for failure to comply with Rule 8 should be with leave to amend.	Referenced to state the general rule favoring leave to amend when Rule 8 violations occur.
Micklus v. Greer, 705 F.2d 314, 317 n.3 (8th Cir. 1983)	Dismissal with prejudice is justified if the plaintiff persistently violates Rule 8.	Supported the conclusion that persistent noncompliance justified dismissal with prejudice in this case.
District of Columbia Court of Appeals v. Feldman, ___ U.S. ___, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983)	Federal district courts may not review state court orders relating to admission, discipline, and disbarment; such orders are reviewable only by the U.S. Supreme Court on certiorari.	Grounded the district court's dismissal for lack of subject matter jurisdiction as an improper attempt to obtain federal district court review of a state court judgment.
MacKay v. Nesbett, 412 F.2d 846, 846 (9th Cir.), cert. denied, 396 U.S. 960, 90 S.Ct. 435, 24 L.Ed.2d 425 (1969)	Quoted in Feldman to state that orders of a state court relating to admission, discipline, and disbarment may be reviewed only by the Supreme Court of the United States on certiorari.	Quoted to reinforce the principle that federal district courts cannot entertain original actions that effectively review state court disciplinary orders.
In re Randall, 640 F.2d 898, 901 (8th Cir.) (cert. denied, 454 U.S. 880, 102 S.Ct. 361, 70 L.Ed.2d 189 (1981))	Certiorari to the United States Supreme Court is the sole means of reviewing disbarment by a state supreme court.	Affirmed the principle that federal district courts lack jurisdiction to review state court disbarment decisions.

Court's Reasoning and Analysis

The court affirmed for two independent reasons.

First, as to Rule 8: the court recited Rule 8(a) and Rule 8(e)(1) requirements and acknowledged the usual practice of permitting amendment per Koll. However, relying on Micklus, the court found Michaelis had persistently refused to comply despite warnings and opportunities. The district court had described the initial complaint as "needlessly long, repetitious and confused" (38 unnumbered pages, 98 paragraphs), granted leave to amend, yet Michaelis filed an amended complaint of 98 pages and 144 paragraphs and also commenced a second similar 60-page complaint. The pleadings' prolixity would have made orderly trial impossible; thus deliberate persistence justified dismissal with prejudice.

Second, as to subject matter jurisdiction: the complaints raised issues fully litigated in the Nebraska Supreme Court disciplinary proceedings. Michaelis sought certiorari review in the United States Supreme Court and was denied. The court relied on District of Columbia Court of Appeals v. Feldman (and authorities quoted therein, including MacKay and In re Randall) to explain that orders of a state court concerning admission, discipline, and disbarment are reviewable only by the U.S. Supreme Court on certiorari and not by an original action in a federal district court. Therefore the district court lacked subject matter jurisdiction to entertain Michaelis' complaints.

Holding and Implications

Affirmed.

Holding: The Eighth Circuit affirmed the district court's dismissal of Michaelis' complaints with prejudice on the grounds of persistent noncompliance with Fed.R.Civ.P. 8 and lack of subject matter jurisdiction.

Implications: The direct effect is termination of these suits against the named defendants. The court applied existing precedent regarding Rule 8 and the limited federal review of state court disciplinary orders; the opinion affirms those principles rather than announcing a new rule.

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KEN L. MICHAELIS (FORMALLY KNOWN AS KENNETH L. MICHAELIS) AND IONA RAE MICHAELIS; RORY LEE MICHAELIS, A MINOR, BY KEN L. MICHAELIS, HIS FATHER AND NEXT FRIEND, AND KYLE LEE MICHAELIS, A MINOR, BY KEN L. MICHAELIS, HIS FATHER AND NEXT FRIEND, APPELLANTS, v. THE NEBRASKA STATE BAR ASSOCIATION, A NEBRASKA ASSOCIATION, AND HOMER ED HURT, JR.; JAMES EGLEY; KENNETH OLDS; PLINY M. MOODIE; ROBERT D. MOODIE; JOHN M. THOR, JR.; STANLEY P. GUSHARD; WILLIAM E. WEBSTER, ALL NEBRASKA LAWYERS AND MEMBERS OF THE NEBRASKA STATE BAR ASSOCIATION; RICHARD P. GARDEN, A NEBRASKA LAWYER AND MEMBER OF THE NEBRASKA STATE BAR ASSOCIATION; LUCILLE TOELLE; NORRIS MAACK; RICHARD LINDBERG; GWEN LINDBERG, D/B/A WEST POINT NEWS; THEODORE M. HUETTMANN AND GLADYS M. HUETTMANN, AND GLADYS M. HUETTMANN, D/B/A WISNER NEWS-CHRONICLE; THE NORFOLK DAILY NEWS; FREMONT TRIBUNE; LINCOLN JOURNAL NEWSPAPER; OMAHA WORLD HERALD COMPANY, OWNER-PUBLISHER OF OMAHA WORLD HERALD NEWSPAPERS; THE ASSOCIATED PRESS WIRESERVICES AND PAUL DOUGLAS, APPELLEES. KEN L. MICHAELIS (FORMALLY KNOWN AS KENNETH L. MICHAELIS) AND IONA RAE MICHAELIS; RORY LEE MICHAELIS, A MINOR, BY KEN L. MICHAELIS, HIS FATHER AND NEXT FRIEND, KYLE LEE MICHAELIS, A MINOR, BY KEN L. MICHAELIS, HIS FATHER AND NEXT FRIEND, AND KARI LYNN MICHAELIS, A MINOR, BY KEN L. MICHAELIS, HER FATHER AND NEXT FRIEND, APPELLANTS,

PER CURIAM.

This is a consolidated appeal from the district court's dismissal of civil rights complaints. On appeal the issue is whether the district court properly dismissed the complaints with prejudice for refusal to comply with the Federal Rules of Civil Procedure and for lack of subject matter jurisdiction. Having considered the record, we affirm.

Appellant Ken L. Michaelis was disbarred for his actions during his 1978 campaign for County Attorney of Cuming County, Nebraska. See State ex rel. Nebraska State Bar Association v. Michaelis, 210 Neb. 545, 316 N.W.2d 46, cert. denied, ___ U.S. ___, 103 S.Ct. 27, 74 L.Ed.2d 42 (1982). Following his disbarment Michaelis filed two actions in federal court, alleging deprivation of various rights. His initial complaint was dismissed, without prejudice and with leave to amend, for lack of compliance with Fed.R.Civ.P. 8. He then filed a complaint commencing a second action and later filed an amended complaint pursuant to the terms of the earlier dismissal. Both of these complaints were substantially similar to his initial complaint in form, content and parties. After a consolidated hearing on motions to dismiss filed in both cases, the district court dismissed both complaints with prejudice, 566 F. Supp. 89 and 566 F. Supp. 94.

Under Rule 8(a) a claim for relief is required to contain a short and plain statement of the claim. Similarly, Rule 8(e)(1) specifies that each averment of a pleading is to be simple, concise and direct. Ordinarily dismissal of a plaintiff's complaint for failure to comply with Rule 8 should be with leave to amend. See Koll v. Wayzata State Bank, 397 F.2d 124, 127 (8th Cir. 1968). But if the plaintiff has persisted in violating Rule 8 the district court is justified in dismissing the complaint with prejudice. See Micklus v. Greer, 705 F.2d 314, 317 n. 3 (8th Cir. 1983).

In the present case Michaelis refused persistently to comply with the requirements of Rule 8 despite adequate warning from the district court and sufficient opportunity to do so. Michaelis' first complaint consisted of 38 unnumbered pages containing 98 paragraphs. The district court found this complaint "needlessly long, repetitious and confused," and ordered the complaint dismissed with leave to amend. The amended complaint covered 98 pages and 144 numbered paragraphs. Moreover, before the amended complaint was filed, Michaelis commenced a second similar action by filing a 60-page complaint containing 99 numbered paragraphs. The style and prolixity of these pleadings would have made an orderly trial impossible. Michaelis' deliberate persistence in refusing to conform his pleadings to the requirements of Rule 8 justified dismissal of the complaints with prejudice.

In addition, the district court properly dismissed the complaints on the further ground that it lacked subject matter jurisdiction. Essentially, the complaints raise issues that were fully litigated in Michaelis' disciplinary proceedings before the Nebraska Supreme Court. Michaelis properly sought review of this decision in the United States Supreme Court. Relief was denied. His subsequent complaints that raise the same issues before the district court constitute an improper attempt to obtain federal district court review of a state court judgment. See District of Columbia Court of Appeals v. Feldman, ___ U.S. ___, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983). In emphasizing the primacy of state interest in regulating the bar, the Court in Feldman observed that "`[o]rders of a state court relating to the admission, discipline, and disbarment of members of its bar may be reviewed only by the Supreme Court of the United States on certiorari to the state court, and not by means of an original action in a lower federal court.'" 103 S.Ct. at 1316 n. 16 ( quoting MacKay v. Nesbett, 412 F.2d 846, 846 (9th Cir.), cert. denied, 396 U.S. 960, 90 S.Ct. 435, 24 L.Ed.2d 425 (1969)). Accord, In re Randall, 640 F.2d 898, 901 (8th Cir.) (certiorari to the United States Supreme Court is the sole means of reviewing disbarment by state supreme court), cert. denied, 454 U.S. 880, 102 S.Ct. 361, 70 L.Ed.2d 189 (1981).

Consequently, the dismissals by the district court are affirmed.