10 9 06 NVD 641 Mirch Opposition to Beesley's Mtn to Dismiss

7/29/2019 10 9 06 NVD 641 Mirch Opposition to Beesley's Mtn to Dismiss

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KEVIN J. MIRCH, ESQ.NV Bar No. 000923320 Flint StreetReno, Nevada 89501(775) 324-7444

Plaintiff in Pro Per

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

KEVIN J. MIRCH, ESQ.

Plaintiff,v. Case No. 3:05-CV-00641-RLH-RAM

BRUCE BEESLEY, ROB BARE,BRIDGET ROBB PECK,DONALD CHRISTENSEN, STATE BAROF NEVADA, DOES I -XA-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 StreetReno, NV 89501(775) 324-7444Plaintiff

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 days1

after its initial filing. There is nothing improper as service was accomplished within theparameters of the Federal Rules of Civil Procedure, and in fact the Amended Complaint had tobe filed before it was served.

2

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 of1

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 theYoungerabstention

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] (quotingRobertson 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 absoluteimmunity

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 litigationtool)

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. TheClark 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 Clarkwas 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 inwhich the person communicating has an interest, or in reference to whichhe has a right or a duty, if it is made to a person with a correspondinginterest or duty." Circus Circus99 Nev. at 62, 657 P.2d at 105 (citationsomitted).A background investigation[***6] of an employee is subject toconditional privilege, and any defamatory statements therein are notactionable unless the privilege is abusedby publishing the statementswith 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 beingpublished 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 satisfactionthat the defendant abused the privilege by publishing the communicationwith malice in fact. The question goes to the jury only if there issufficient evidence for the jury reasonably to infer that the publicationwas made with malice in fact. Circus Circus99 Nev. at 62, 657 P.2d at105 (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 thedefendants.

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). TheBotellocase was a 42 USC 1983 action by a former policeth

officer against the Washoe County District Attorney. In that action the Court held:

Prosecutors are absolutely immune from liability under @1983 for theirconduct insofar as it is "intimately associated" with the judicial phase ofthe criminal process. SeeBurns v. Reed, 500 U.S. 478, 486, 114 L. Ed.2d 547, 111 S. Ct. 1934 (1991) (quotingImbler v. Pachtman , 424 U.S.409, 430, 47 L. Ed. 2d 128, 96 S. Ct. 984 (1976));Miller v. Gammie,335F.3d 889, 897 (9th Cir. 2003) (en banc) ("To enjoy absolute immunity fora particular action, the official must be performing a duty functionallycomparable to one for which officials were rendered immune at common



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law."). However, when prosecutors perform administrative orinvestigative functions, only qualified immunity is available. See

Buckley v. Fitzsimmons, 509 U.S. 259, 271-73, 125 L. Ed. 2d 209, 113S. Ct. 2606 (1993); Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir.2003). That is, the actions of a prosecutor are not absolutely immunemerely because they are performed by a prosecutor.Buckley, 509 U.S. at273.

To determine whether an action is judicial, administrative orinvestigative, the court looks at "the nature of the function performed,not the identity of the actor who performed it."Kalina v. Fletcher, 522U.S. 118, 127, 139 L. Ed. 2d 471, 118 S. Ct. 502 (1997) (quotingForrester 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 qualifiedimmunity depends on which of the prosecutor's actions are challenged.SeeMorley v. Walker, 175 F.3d 756, 759 (9th Cir. 1999). The officialseeking absolute immunity bears the burden of demonstrating thatabsolute immunity is justified for the function in question.Buckley,509 U.S. at 269; Burns v. Reed, 500 U.S. 478 at 486 (1991). Thepresumption is that qualified rather than absolute immunity is sufficientto protect government officials in the course of their duties.Burns, 500U.S. at 486-87.

Although the line between the functions is not entirely clear, it isclear that absolute prosecutorial immunity is justified "only foractions that are connected with the prosecutor's role in judicialproceedings, not for every litigation-inducing conduct."Burns, 500U.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 particularcase or group of cases, see Roe, 109 F.3d at 583. In addition, aprosecutor's professional evaluation of a witness is entitled to absoluteimmunity "even if that judgment is harsh, unfair or clouded by personalanimus." Id. at 584.

On the other hand, it is also well established that an official is notentitled 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 capacityas an employer and therefore may be liable for unconstitutional conductinvolving the termination, demotion and treatment of employees);Meekv. County of Riverside, 183 F.3d 962, 967 (9th Cir. 1999) (holding thata judge's decision to fire an employee was an administrative decision notentitled 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, inBotello 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 isEdgar 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. BothEdgar

andStevens v. McGimsey, 99 Nev. 840; 673 P.2d 499 (1983) are based on the view

that bad motives can abrogate judicial immunity; Stevensrelies 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), isth

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 tobe constitutionally tolerable are those in which the adjudicator has adirect and substantial pecuniary interest in the outcome of the case beforehim. Withrow, 421 U.S at 47. In such cases, the adjudicators

participation constitutes a per se violation of due process - theappearance 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; UticaPacking Co. v. Block, 781 F.2d 71, 77-78 (6 Cir. 1986).th

The Supreme Court has held that a state licensing tribunalviolates due process when its members have a direct and substantialcompetitive interest in the outcome of the proceedings before them.Gibson, 411 U.S. at 578-79. In Gibson, the Court considered thedisciplinary proceedings of an optometry company. All the members ofthe licensing board, however, were self-employed optometrists. 411 U.S.at 571. The district court found that, if the optometry company wereforced to shut down, the individual members of the Boar, along withother private practitioners of optometry, would all heir to this business. Id. Without requiring any showing that he boards decision wasactually influenced by impermissible bias, the Court upheld the districtcourts conclusion that the board members substantial pecuniaryinterest in denying his licenses to competitors constituted a per seviolation of the plaintiffs right to due process. Id. At 579.

Stivers v. Pierce, supra at 742.

The board in Stiverswas 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 besued...

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 byappellees. They assert that, aside from the reasons advanced by thedistrict court, summary judgment was proper because the Alabama StateBar is not a properly suable entity. Appellees offer no authority tosupport this argument. We have allowed suits against the Alabama StateBar in the past, seeParrish v. Board of Commissioners of the AlabamaState Bar, [**14] 533 F.2d 942 (5th Cir. 1976), and see no merit inappellees' contention. Appellee also assert that summary judgment is

proper because the Commissioners of the State Bar are absolutelyimmune from damages in this civil rights case. In response, appellants'suit surely encompassed more than a claim for monetary relief, and thusany 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. 2d641 (1980). Moreover, as we have stressed in the past, the issue of animmunity defense usually turns on issues of fact. Slavin v. Curry,574F.2d 1256 (5th Cir.) modified on other grounds, 583 F.2d 779 (5th Cir.1978). See alsoProcunier v. Navarette, 434 U.S. 555, 98 S. Ct. 855, 55L. Ed. 2d 24 (1978);Princeton Community Phone Book, Inc. v. Bate, 582F.2d 706, 711-715 (3d Cir.), cert. denied, 439U.S. 966, 99 S. Ct. 454, 58L. Ed. 2d 424 (1978). The affidavit plaintiffs submitted to the districtcourt 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 finalresolution on a motion for summary judgment.

Foley v. Alabama State Bar, 648 F.2d 355 (5 Cir. 1981) at 360th

2. The Eleventh Amendment does not protect Defendants Beesley, Peckand 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 BruceBeesley, Esq., an insurance defense attorney with strong personal ties toInternational Game Technology, the Nevada State Bar Association, andthe State of Nevada Northern Nevada Disciplinary Panel, and wasencouraged to cause substantial harm to Mr. Mirchs legal career. At thetime, Mr. Beesley was counsel for IGT in a case entitledIGT v. the GoldClub 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 filea Bar Complaint against Kevin Mirch with the State Bar of Nevada. TheBar Complaint had to be filed before trial began against IGT and causedMr. 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 JohnCavanaugh, owner of the Gold Dust West, that Mr. Cavanaugh had beentold or heard that it was IGTs strategy in theIGT v. Gold Club CasinoCase, supra, to win by causing Mr. Mirch serious trouble with the

Nevada State Bar, Northern Disciplinary Panel, so that he would beunable to litigate or would be so upset that he would be uneffective. Theconduct by Bruce Beesley, Bridget Robb Peck, his partner, and the StateBar of Nevada, Northern Nevada Disciplinary Panel, was unethical,civilly actionable, and constituted the crimes of extortion and obstructionof evidence.

...

72. On October 7, 1998, Pete Sullivan, Esq., attorney workingfor Attorneys Bruce Beesley and Bridget Robb Peck filed an affidavitthat admitted that Mr. Mirch was being set up by firms using the NevadaSupreme Court and the State of Nevada Northern Nevada DisciplinaryPanel 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 GreenTree 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 issuspended or disbarred. Notorious for Filing Counterclaims,



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ETC. Disbarment Proceedings going on right now and they shouldknow shortly what happened we will advance 2 mo until thisoccurs.8-2-95 Dric cld to discuss ACCT sd debtors Aty is up forDisbarment-thinkswe should wait 30 days and see what happens

feels that there will be a counter claim against us and prob thelaw firm sdin past past experience w/this clown. It will cost Anarm and leg Defending SD will follow up w/me in 30 days & wecan make decision.7-11-95. RE cl F/sid kisster (Gordon & Silver) he cld to adv thatthey have complaint ready to be filed but till they should let usknow that kevin mirch is a sociopath & will def counter sue us& atty firm and will be seeking punitive Damages SD they havehad dealing S w/him before and he is nuts SD will want to deposeme and credit officer and pres of co SD will prob cost quite a bitto defend -SD we would probably prevail but they are concernedabout the cost & wanted to make us aware of it. SD will have Erictough 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 datebeing unknown to Kevin J. Mirch, and continuing thereafter up to andincluding the date of the filing of this Complaint, the Defendants haveconspired to inhibit trade and competition in violation of 1 of theSherman Act, 15 U.S.C. 1, by engaging in an unlawful combination andconspiracy to blacklist, use the State Bar of Nevada as a Business Toolto cause harm to Mr. Mirchs business; and cause a boycott of Mr.Mirchs business by terminating repeatedly causing false claims to befiled with the State Bar of Nevada Disciplinary Board, changing theterms and conditions of disciplinary action imposed or to be imposedagainst Mr. Mirch, thus violating due process afforded Kevin J. Mirch,Esq., by the State Bar of Nevada and Nevada Supreme Courts ownrules and regulations.

262. The Defendants have agreed to prevent the disciplinaryprocess to be used as a business or fraudulent tool to cause"non-compliant" attorneys that participate in illegal or improper conductwhich directly affects interstate commerce. "Non-compliant" attorneysand members of the judiciary are those individuals willing to participatein 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 Youngerabstention 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

Youngerabstention doctrine. This is not true. The Youngerabstention 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 theth

abstention doctrine does not apply to state bars. This is a misstatement of the holding

inFoley. In fact, theFoleycourt 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, 401U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971) , to abstain fromresolution of the federal constitutional issues raised by this case; the state

bar disciplinary procedure, they assert, is the proper forum to decidethese issues. Brief for Appellees at 22. There is no merit to thiscontention: "Younger dismissal is called for only in thosecircumstances where successful defense of a state enforcementproceeding, initiated before substantial federal proceedings on themerits had occurred, would fully vindicate the federal plaintiff'sfederal right."Morial v. Judiciary Commission of State of La., 565 F.2d295, 299 (5th Cir. 1977) (en banc) (emphasis added), cert. denied, 435U.S. 1013, 98 S. Ct. 1887, 56 L. Ed. 2d 395 (1978). There is noindication that appellants may vindicate their constitutional rights in thestate bar disciplinary proceedings, and thus we have no mandate toabstain from entertaining this suit.

Foley, supra at 360. Application of the YoungerAbstention 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 Youngerabstention 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 byParker 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. SeeApex 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 ClaytonAct 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

alsoFord 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 thiscomplaint as if more fully set forth herein.

261. Beginning at least as early as November 1985, the exact datebeing unknown to Kevin J. Mirch, and continuing thereafter up to andincluding the date of the filing of this Complaint, the Defendants haveconspired to inhibit trade and competition in violation of 1 of theSherman Act, 15 U.S.C. 1, by engaging in an unlawful combinationand conspiracy to blacklist, use the State Bar of Nevada as a BusinessTool to cause harm to Mr. Mirchs business; and cause a boycott of Mr.Mirchs business by terminating repeatedly causing false claims to befiled with the State Bar of Nevada Disciplinary Board, changing theterms and conditions of disciplinary action imposed or to be imposedagainst Mr. Mirch, thus violating due process afforded Kevin J. Mirch,Esq., by the State Bar of Nevada and Nevada Supreme Courts ownrules and regulations.

262. The Defendants have agreed to prevent the disciplinary



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268. At one point in time prior to Defendants constructiveattempt to terminate Mr. Mirchs license, Mr. Mirch had been called totestify in Santa Barbara about the Bankruptcy Courts Order. Mr. Mirchwas told that if he testified or disclosed that the money should be repaidto individuals from which it had been stolen that he would lose hislicense, be attacked by the State Bar and be subjected to relentless attacks

by the state bar. All of these threats have occurred. The threats occurredalso when the State Bar was aware that Mr. Mirch was suffering fromsevere medical problems. Because Mr. Mirch agreed to testify"honestly", the State Bar Disciplinary Board, certain preferredattorneys, and Rob Bare retaliated by constantly attacking Mr. Mirchs

practice. On one occasion Mr. Mirch was attacked for allegedly signinga false affidavit that he did not sign, was correct, and that he had noknowledge off. Rob Bare was aware of this improper attack upon Mr.Mirch and refused to correct the same. Instead, he feared for his own joband accordingly, participated in conduct that he knew was illegal.

269. The State Bar of Nevada, related entities and individualshave intentionally caused, by their conduct, a boycott of Mr. Mirchs,and Mirch and Mirchs legal practiceby constructively terminatinghis privileges, publishing the constructive termination, and defaming hisabilities to potential and current clients.

270. The boycott of Kevin J. Mirch, and Mirch & Mirch hashad an obvious effect on interstate commerce.

271. This conspiracy has affected a number of attorneys tobelieve false statements about Mr. Mirch despite several successfulclaims for relief that have benefitted the Reno area from theft in thegaming, banking, securities, medical, and sexual misconduct in hospitals.

272. Upon information and belief, the attorneys who improperlyparticipated in the illegal out of state conduct include, but are not limitedto Bruce Laxalt, Bruce Beesely, Bridget Robb Peck, Ann Morgan, SarahBeth Brown, among others. If the conspiracy is allowed to continue, itreasonable to assume that the damages sustained as a result of the samewill not only continue, but increase. Furthermore, the improper

protection of the casino industry by this misconduct will thus causeNevadas gaming industry to decline to a point that it has not credibilityother than professional wrestling.

273. Under 1 of the Sherman Act the Defendants haveestablished a number of illegal agreements, that have a direct impactupon interstate commerce via the conduct of their clients inconjunction with their own illegal treatment. A number of honestattorneys have moved out of the State of Nevada in thereby deprivingthemselves of practicing in that state and depriving their clients ofreceiving the attorney of their choice. Thus the conduct andagreements created by the Defendants have denied interstatecommerce to clients. These same agreements reasonably will impact theclients constitutional rights if not stopped.

274. In addition, because the conspiracy has actually beensuccessful, Kevin J. Mirch and Mirch & Mirch has lost substantial

business not only in California but constructively in various otherlocations throughout the United States.

275. The Defendants conspired with others to abuse theNevada State Bar Disciplinary processby waiting over 2 years beforeinitiating 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 andMirch & Mirch have been restrained in their ability to make his highquality services readily and fully available to the local, out of WashoeCounty, 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 rightsprivileges, and review requested, has expended the financial resourcesrequired to remain in business or to compete successfully in resisting orovercoming the Defendants' conspiracy. The conspiracy intends todeplete the resources of Mr. Mirch in order to cause fraudulent businessaffairs to continue within the state of Nevada.

278. Defendants have delayed the ultimate granting of due processrights, privileges, and review so as to damage severely Kevin J. Mirchsability to compete or remain in business. By delaying the proceduresrequired in their own bylaws, Kevin J. Mirchs administrative procedureshave been ongoing for over 2 years. State Bar Rules require matters to beresolved in 45 days. As a result he has lost a substantial amount of his

business and caused severe medical problems to persist for prolongedperiods of time.

279. The effect of the combination and conspiracy has been andwill be, among other things, to prevent and restrain competition inthe furnishing of business litigation focusing on fraudulentmanufacture 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 considerablesums of money which he would not otherwise have been required tospend due to the necessity of overcoming the illegal attempts by theDefendants to deny Kevin J. Mirch and Mirch & Mirch their right to asubstantial number of clients their constitutional rights.

281. As a result of the combination and conspiracy to restraintrade and competition by the Defendants, Kevin J. Mirch has been causedto suffer and will continue to suffer substantial damages to his reputationand practice, all to his detriment.

282. The Defendants concerted efforts to eliminate Kevin J.Mirch and Mirch & Mirch as a competitor constitutes a groupboycott in violation of Section 1 of the Sherman Act. By eliminatingKevin J. Mirch and Mirch & Mirch as a competitor, the boycottsuccessfully reduced competition for the Defendants' and othercompliant attorneys.

283. Kevin J. Mirch is unable at this time to state finally theamount of damages sustained to date and those to be sustained in thefuture by reason of the illegal acts of Defendants as set forth herein.Kevin J. Mirch would show that,but for the illegal combination andconspiracy of the Defendants as alleged herein, as of the date of thefiling of this lawsuit, he has suffered damages in an amount in excessof $75,000,000. Kevin J. Mirch is further entitled to three times thedamages determined to have been sustained, simple interest on actualdamages as allowed by law, costs of suit and attorney's fees for the trialor 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 tothe United States Supreme Court and a cost of retraining for Kevin J.Mirch on those procedures he has been denied since his constructivetermination from the State Bar of Nevada.

284. The Defendants conspired with one another tomonopolize or attempt to monopolize the legal business in violationof 15 U.S.C.A. 1 and 2. The Defendants have conspired to restraincompetition and inhibit trade, including denial of competitiveadvantages or opportunities, in violation of 15 U.S.C. 15 and 26.

285. The Defendants conspired with one another to perform falseand malicious peer review against Kevin J. Mirch in order to cause theloss of his privileges to practice law. They did so by using and

performing reviews by persons who were unqualified and/or who werebiased competitors and who were motivated by anti-competitive intent.

286. These Defendants have published false and inaccuratewritten reviews, biased testimony, and false reports, in many casescontrary 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 ofcausing the loss of privileges and goal of causing each attorney to

become an "compliant individual fearful of protecting his or her clientsconstitutional rights".

287. Defendants have knowingly, willingly, and maliciouslysought to destroy Kevin J. Mirchs, and Mirch & Mirchs reputation andlegal practice in order to inhibit or restrain competition from Kevin J.Mirch, and Mirch & Mirch. This is a pattern of conduct which can beestablished by the testimony of other lawyers and competitors. Suchconduct requires an award of exemplary damages, treble damages andattorneys fees against the defendants, in order to discourage such conductin the future.

288. Plaintiff has suffered damages in excess of $75,000, the exactamount of which will be determined at the time of trial.

289. Plaintiff has been required to retain counsel and as a such isentitled to reasonable attorney fees and costs.

290. Kevin J. Mirch is entitled to recover threefold the damageshe sustained, and the cost of suit, including attorneys fees, pursuant toSection 4 of the Clayton Act. 15 U.S.C. 15 (1988). In addition pursuantto 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 whichSherman and Clayton Acts were brought against the peer doctors ina disciplinary matter.

The case ofPoliner 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 heretowas a resident of Clark County, State of Nevada.

6. Defendant DOES I- X at all times relevant hereto wereresidents of Washoe County, State of Nevada. Donald Christensenworks for the City of Reno, City Attorneys Office.

299. The following conduct has violated Mr. Mirchs due processrights on a continuous basis:

g. Mr. Christensen, Esq., who works for Reno CityAttorneys office and had a conflict of interest which

prevented his involvement in this case.h. Mr. Christensen was involved in the acceptance ofcontractors fees for homes in the amount of $1,000.00 per

property. Mr. Mirch was involved in a dispute thatrequested an accounting of the $1,000.00. Because thatmoney could not be found, a bond was issued which paidfor the missing funds. Mr. Christensen has a conflictsince he is involved in the missing funds which caused a

bond offering to be voted upon and eventually caused thatmoney to be used to pay for the missing monies.I. Currently, before the Reno City Attorneys Office is aclaim wherein Mr. Mirch represents Mr. Oberg in a disputeover an expansion at a Home Depot, that had previously

been resolved, but the Defendants have changed the termsby selling parts of the property without proper noticeregarding the same. Mr. Christensens involvement inthat matter makes his involvement in the MirchDisciplinary matter biased. Mr. Christensen recognizedthis issue by writing a letter questioning the discrepancy.Despite acknowledging the bias, Defendants haverefused to remove competitors, previously usedattorneys 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 Youngerabstention 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/________________KEVIN J. MIRCH, ESQ.NV SBN: 923320 Flint Street

Reno, NV 89501Plaintiff



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Documents

10 9 06 NVD 641 Mirch Opposition to Beesley's Mtn to Dismiss