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UNITED STATES v. FERRARA

May 28, 1993

UNITED STATES OF AMERICA, Plaintiff,
v.
VIRGINIA L. FERRARA, Chief Disciplinary Counsel of the Disciplinary Board of the Supreme Court of New Mexico, Defendant.


JOHNSON


The opinion of the court was delivered by: NORMA HOLLOWAY JOHNSON

The United States has brought this action against defendant Virginia L. Ferrara, Chief Disciplinary Counsel of the Disciplinary Board of the Supreme Court of New Mexico, to enjoin an inquiry by the Disciplinary Board into the conduct of Assistant United States Attorney John Doe. Currently pending before the Court is defendant's motion to dismiss the complaint, as well as the parties' cross-motions for summary judgment. Upon consideration of the motions, the supporting memoranda of the parties, the entire record herein, and for the reasons outlined below, the Court will grant defendant's motion to dismiss the complaint.

 John Doe, *fn1" is an Assistant United States Attorney ("AUSA") employed by the Office of the United States Attorney for the District of Columbia. He is licensed to practice law in the state of New Mexico. In 1988, Doe prosecuted a criminal defendant, Darryl J. Smith, in the Superior Court for the District of Columbia. Smith was represented by counsel from the Public Defender's office. On a number of occasions during the course of the prosecution, from September through November 1988, Doe and D.C. Metropolitan Police detective Donald R. Gossage were contacted by Smith and spoke with him, without the knowledge or consent of Smith's counsel.

 When Smith's attorney learned of these communications, she objected and filed a motion to dismiss the indictment against her client. Although the Superior Court denied Smith's motion, it nevertheless referred the matter to the District of Columbia Bar Counsel of the Board on Professional Responsibility ("D.C. Bar Counsel"), for possible disciplinary proceedings against Doe on the grounds that he had violated Rule 7-104(A)(1) of the D.C. Code of Professional Responsibility. Because Doe was not a member of the D.C. bar at the time of his alleged violation, the D.C. Bar Counsel referred the matter to the Disciplinary Board of the Supreme Court of New Mexico ("Disciplinary Board"), where Doe was licensed to practice law.

 On August 27, 1990, defendant Ferrara filed a specification of charges before the Disciplinary Board, alleging that Doe violated Rules 16-0402, 16-804(A), and 16-804(D) of the New Mexico Rules of Professional Conduct, as well as Rules 7-104(A)(1) and 1-102(A)(2) of the District of Columbia Code of Professional Responsibility. These violations allegedly arose out of Doe's communication with an adverse party known to be represented by counsel without the consent of that counsel. See Stipulation of Charges, Exhibit A to Plaintiff's Motion for Summary Judgment (hereinafter "Pl. S.J.").

 On August 28, 1990, Doe sought to remove the disciplinary action to the United States District Court for the District of New Mexico, under 28 U.S.C. § 1442(a)(1). The district court held that it had no jurisdiction under § 1442(a)(1) because a disciplinary proceeding before a state bar disciplinary board was neither a "civil action" nor a "criminal prosecution," within the meaning of that statute. See Matter of Doe, 801 F. Supp. 478 (D.N.M. 1992). The court also stated that no colorable federal defense to the disciplinary action existed, to support removal under § 1442. Accordingly, it remanded the action to the Disciplinary Board for further proceedings.

 The United States subsequently filed the instant case in this jurisdiction. The case originally came in on plaintiff's motion for preliminary injunction. After briefing on the motion for preliminary injunction, as well as an oral hearing on the motion, this Court granted plaintiff's motion. By Order dated February 8, 1993, the Court enjoined defendant Ferrara from proceeding with the disciplinary action against Doe before the New Mexico Disciplinary Board, during the pendency of this action. The case has now been fully briefed and is ripe for consideration on its merits.

 DISCUSSION

 Defendant has moved to dismiss the complaint in this case on four grounds. First, defendant argues that the court lacks personal jurisdiction over her. Second, she claims that, because the United States District Court for the District of New Mexico already considered and rejected Doe's Supremacy Clause arguments, principles of collateral estoppel and res judicata preclude this Court's reconsideration of those arguments. Third, defendant asserts that the Court should abstain, under Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971), from taking any action on the merits of this case pending conclusion of the disciplinary proceedings against Doe in New Mexico. Finally, defendant maintains that venue is improper in the District of Columbia.

 1. Personal Jurisdiction

 Under the long-arm statute of the District of Columbia, an individual becomes subject to the jurisdiction of a District of Columbia court by "transacting any business in the District of Columbia." D.C. Code § 13-423(a)(1). The "transacting business" provision has been interpreted to be as far-reaching as the due process clause allows. Koteen v. Bermuda Cablevision, Ltd., 286 U.S. App. D.C. 207, 913 F.2d 973, 974 (D.C. Cir. 1990) (citing Hummel v. Koehler, 458 A.2d 1187, 1190 (D.C. 1983)).

 In order for a court to exercise personal jurisdiction over a nonresident defendant, due process requires that the nonresident defendant have certain minimum contacts with the forum so the maintenance of the suit does not offend traditional notions of fair play and substantial justice. International Shoe Co. v. Washington, 326 U.S. 310, 316, 90 L. Ed. 95, 66 S. Ct. 154 (1945). More specifically, there must be some act by which the defendant purposely avails himself of the privilege of conducting activities in the forum state, thereby invoking the benefits and protection of its laws, before she can be haled into court. Hanson v. Denckla, 357 U.S. 235, 253, 2 L. Ed. 2d 1283, 78 S. Ct. 1228 (1958); accord Asahi Metal Industry Co. v. ...


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