United States District Court, E.D. North Carolina, Southern Division
CHRISTOPHER W. LIVINGSTON, Plaintiff,
NORTH CAROLINA STATE BAR, et al., Defendants.
C. DEVER, III UNITED STATES DISTRICT JUDGE
January 9, 2018, Christopher W. Livingston
("Livingston" or "plaintiff') filed a
complaint against the North Carolina State Bar
("NCSB") and the 13th Judicial District Bar
("District Bar") alleging that annual District Bar
dues, as authorized by North Carolina General Statute §
84-18.1, are unconstitutional [D.E. 1]. The NCSB is an agency
of the State of North Carolina. See N.C. Gen. Stat.
§84-15. The District Bar is a subdivision of the NCSB.
See Id. §84-18.1. On April 12, 2018, Livingston
filed an amended complaint against NCSB, Lee Wilson Bettis
Jr. ("Bettis"), Leanor Bailey Hodge
("Hodge"), and John Silverstein
"defendants") [D.E. 6]. Bettis is a member of the
NCSB and was a witness in a disciplinary proceeding involving
Livingston. Silverstein is a member of the NCSB and served as
NCSB councilor and chair of the Grievance Committee in April
2015 in a state disciplinary action against Livingston. Hodge
is deputy counsel with the NCSB's Office of Counsel and
prosecuted disciplinary actions against Livingston. In his
amended complaint, Livingston also alleged selective
prosecution due to defendants' failure to pursue attorney
discipline proceedings against other attorneys. Id.
seeks relief under 42 U.S.C. § 1983 and the North
Carolina Constitution. Id. On April 26, 2018, NCSB
and District Bar moved to dismiss Livingston's amended
complaint for lack of subject-matter jurisdiction and for
failure to state a claim upon which relief can be granted
[D.E. 8] and filed a memorandum in support [D.E. 9]. On June
15, 2018, Livingston responded in opposition [D.E. 15]. On
July 30, 2018, Bettis moved to dismiss Livingston's
amended complaint for lack of subject-matter jurisdiction and
for failure to state a claim [D.E. 20] and filed a memorandum
in support [D.E. 21 ]. On August 15, 2018, Hodge and
Silverstein moved to dismiss Livingston's amended
complaint for lack of subject-matter jurisdiction and failure
to state a claim [D.E. 26] and filed a memorandum in support
[D.E. 27]. On September 9, 2018, Livingston responded in
opposition to Bettis's motion [D.E. 32] and to
Hodge's and Silverstein's motion [D.E. 33].
November 28, 2018, Livingston moved for leave to file a
second amended complaint [D.E. 35] and filed a memorandum in
support [D.E. 36]. On December 19, 2018, defendants responded
in opposition [D.E. 37, 38]. On January 7, 2019, Livingston
replied [D.E. 39]. As explained below, the court grants
defendants' motions to dismiss and denies as futile
Livingston's motion to amend.
resides in Bladen County, North Carolina. See [D.E. 6] ¶
5; [D.E. 1] ¶ 18. In March 2004, Livingston, who was
then a member of the North Carolina State Bar, began to
represent ) clients against Capital
Acquisitions and Management Company ("Cameo"), a
debt collector based in Rockford, Illinois. See [D.E. 6]
¶ 43. On March 12, 2004, Livingston filed suit against
Cameo and its counsel in Wake County District Court in North
Carolina. See Id. ¶ 50. Cameo removed the
action to the United States District Court for the Eastern
District of North Carolina. See Id. ¶
52.Livingston applied for admission to the
North Carolina Eastern District Bar but failed to "take
the oath of office before a U.S. Magistrate Judge in open
court before appearing in court." Id.
¶¶ 53-55. On September 8, 2004, Livingston appeared
before the Honorable Terrence W. Boyle, who noted that
Livingston had not yet been admitted to appear in the Eastern
District of North Carolina. See id. ¶¶
57-58. Livingston acknowledged that he had yet do so. See id
¶ 58. Judge Boyle also questioned Livingston's
motive in bringing suit against Cameo. See Id.
the hearing, Livingston moved to disqualify Judge Boyle. See
Id. ¶ 63. Livingston describes the tone and
statements within the motion as "unprofessional and
extremely regrettable." Id. ¶ 64. In
December 2004, NCSB commenced a grievance investigation
against Livingston, alleging that he had unauthorizedly
practiced law and noting that Livingston's "motion
to disqualify Judge Boyle was cause for professional
discipline." Id. ¶ 70. Livingston alleges
that NCSB initiated the disciplinary proceeding in
retaliation for Livingston "[holding] debt collectors
accountable for violating the law." Id. ¶
72. Livingston also alleges that, in August 2006, the
Disciplinary Hearing Commission ("DHC") heard oral
arguments in Livingston's disciplinary proceeding and
indicated I that Livingston ought to
prevail. See Id. ¶¶ 90-91. In October
2007, DHC scheduled another hearing concerning
Livingston's disciplinary proceeding. See id ¶ 94.
On January 3, 2008, DHC entered a final order of discipline
that admonished Livingston for Livingston's unauthorized
practice of law in both the Eastern District of North
Carolina and the District of Utah. See id ¶ 102;
Livingston. 6 DHC 11, at 5. Livingston then sued
NCSB for malicious administrative prosecution and selective
prosecution. Superior Court Judge Donald Stephens dismissed
the complaint for failure to state a claim. [D.E. 6]
¶¶ 105-06; cf. Livingston v.
Bakewell. 232 N.C.App. 337, 757 S.E.2d 525, 2014 WL
457905, at *l-2 (2014) (per curiam) (unpublished table
decision). On February 4, 2014, the North Carolina Court of
Appeals affirmed. See Livingston. 2014 WL 457905.
February 2008, Philip Manger ("Manger") contacted
Livingston about representing consumers in debt collection
matters. See [D.E. 6] ¶ 247. Manger worked for the
Credit Collections Defense Network ("CCDN"). See
Id. ¶ 249. Livingston accepted clients from
CCDN and served as an "Associate Attorney" even
after Livingston learned that CCDN engaged in the
unauthorized practice of law. See id. ¶¶
251, 254-56; N.C. State Bar v. Livingston. 809
S.E.2d 183, 186 ( N.C. Ct. App. 2017). disc, review
denied. 812 S.E.2d 853 ( N.C. 2018). Eventually,
Livingston terminated his agreement with CCDN, and he began
to represent clients in matters against CCDN. See [D.E. 6]
¶¶ 257-64. Bettis represented CCDN in some of the
matters. See id. ¶ 277. Livingston alleges that
Bettis violated numerous rules of professional responsibility
while representing CCDN. See. e.g.. Id.
¶¶ 278-90, 300-01, 315, 348. Over the course of
several years, Livingston filed actions on behalf of multiple
clients against CCDN, and Livingston and Bettis had repeated
negative encounters. See, e.g.. Id.
April 10, 2015, NCSB filed a complaint against Livingston
based on Livingston's conduct during the CCDN litigation.
See id ¶ 108. Following a four-day trial, DHC found that
Livingston had violated numerous rules of professional
conduct and suspended his license for five years. See ]&
¶ 109; N.C. State Bar v. Livingston. 15 DHC 15
(Disciplinary Hr'g Comm'n July 8, 2016),
%20Ch ristopher%20Order%20of%20Disc%2015DHC15.pdf. On
December 19, 2017, the North Carolina Court of Appeals
affirmed Livingston's suspension. See
Livingston. 809 S.E.2d at 200.
contends that NCSB, Hodge (Deputy Counsel for NCSB), and
Silverstein (Chair of NCSB's Grievance Committee)
"instituted and maintained [the disciplinary] action
primarily in retaliation for [Livingston's] success"
in the prior disciplinary proceeding and for Livingston's
"truthful criticisms of NCSB and Judge Boyle."
[D.E. 6] ¶ 113. Livingston maintains that NCSB would
have pursued disciplinary action against Bettis and other
attorneys if not for NCSB's retaliatory motive.
January 9, 2018, Livingston filed a complaint against NCSB
and the District Bar alleging that mandatory bar dues, as
authorized by N.C. Gen. Stat. § 84-18.1, are
unconstitutional both facially and as applied to Livingston.
See [D.E. 1] 5. On April 12, 2018, Livingston amended his
complaint, adding Hodge, Silverstein, and Bettis as
defendants and removing the District Bar as a defendant [D.E.
6]. Livingston's amended complaint includes four claims:
(1) a section 1983 claim against defendants for illegal
taxation in violation of the Fifth and Fourteenth Amendments,
(2) a section 1983 claim against defendants for selective
prosecution in violation of the First and Fourteenth
Amendments, (3) an illegal taxation claim in violation of the
North Carolina Constitution, and (4) and a selective
prosecution claim in violation of the North Carolina
Constitution. See Id. ¶¶ 453-56.
Livingston seeks monetary damages, injunctive relief, and a
declaration that N.C. Gen. Stat. § 84-18.1 is
9, 2018, the Supreme Court of North Carolina denied
discretionary review of Livingston's suspension. See
N.C. State Bar v. Livingston. 812 S.E.2d 853, 853-54 (