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Salem v. Kozlov

United States District Court, N.D. Illinois, Eastern Division

August 8, 2016



          SARA L. ELLIS United States District Judge

         Plaintiff Maurice James Salem, an attorney admitted to practice law in New York, but not in Illinois, brings this action against Defendants Illinois Attorney Registration and Disciplinary Commission (the “ARDC”), Scott Kozlov, an attorney with the ARDC, and Jerome Larkin, the Administrator of the ARDC (collectively the “ARDC Defendants”), as well as Joel Brodsky, a private attorney against whom Salem has litigated, alleging that Defendants conspired to unconstitutionally deprive him of his permission to appear pro hac vice in Illinois courts by “prohibit[ing] [him] from paying the required fee to appear in his last state court case on a pro hac vice basis, and depriving [him] of his license to practice law on a pro hac vice basis, without notice or a hearing.” Doc. 21 ¶ 42. Salem also brings a claim for assault against Kozlov. Defendants filed motions to dismiss the federal law claims in Salem’s Second Amended Complaint (“SAC”) for failure to state a claim and to dismiss his assault claim for lack of subject matter jurisdiction [29, 32]. Brodsky also has filed a motion for sanctions [41]. Salem has failed to allege well-pleaded facts sufficient support a claim for relief on any of his federal law claims and the Court declines to exercise supplemental jurisdiction over his assault claim, so the Court grants the motions to dismiss. But because the Court finds that Salem’s actions do not rise to the level warranting sanctions at this stage, the Court denies the motion for sanctions.


         Salem is an attorney, admitted to practice in New York but not admitted to practice in Illinois. He is domiciled in New York but has residences in both New York and Illinois; he has owned or rented a home in Illinois since at least 2004. Over the last decade Salem has appeared in numerous Illinois state court proceedings on a pro hac vice basis, appearing in five cases in Illinois since 2013.

         The ARDC is the agency overseeing the registration and discipline of members of the Illinois bar and out-of-state attorneys who appear before Illinois courts. It also investigates allegations of unauthorized practice of law by individuals not holding an Illinois law license. Kozlov works as an ARDC attorney, and Larkin is the ARDC Administrator.

         Brodsky is a private attorney who practices in Illinois, adversely to Salem in several matters. On November 17, 2014, Brodsky filed a motion in Illinois state court to terminate Salem’s permission to appear pro hac vice in Marayah Diagnostics, LLC v. Westfield Plaza, 2012-CH-22853 (Ill. Cir. Ct.) (“Marayah”). The court denied Brodsky’s motion, however, because he lacked standing to challenge Salem’s appearance under Illinois Supreme Court Rule 707. Rule 707 is the Illinois Supreme Court rule that regulates the permission of out-of-state attorneys to provide legal services in Illinois proceedings.

         On July 17, 2015 Salem filed a statement (“Rule 707 Statement”) with the ARDC as required by Illinois Supreme Court Rule 707(a) in support of his application to appear pro hac vice in Prime Builders v. Allstate et al., Case No. 2015 L 7034 (Ill. Cir. Ct.) (“Prime Builders”). At or around this time he also attempted to pay the $250 fee per proceeding to the ARDC (“the Prime Builders Fee”) as required by Supreme Court Rule 707(f) but he was unable to do so. Normally after a party has filed a Rule 707 Statement, their online ARDC account will indicate that they owe the $250 fee. After Salem filed the statement in Prime Builders, his online ARDC account showed a zero-dollar balance and would not accept any payment from him. This occurred because Kozlov reduced the account balance to zero to prevent Salem from paying the Prime Builders Fee and, Salem alleges, terminated his ability to appear pro hac vice, without notice or hearing. Salem states that Kozlov’s action “depriv[ed] Salem of his license to practice law on a pro hac vice basis.” Doc. 21 ¶ 3.

         On September 9, 2015, Kozlov filed motions on behalf of the ARDC and Larkin to terminate Salem’s permission to appear pro hac vice in four state court cases, including Prime Builders and Marayah, in which Salem was then appearing (the “Termination Motions”).[2]Those courts granted all four motions after providing Salem an opportunity to respond and holding a hearing. Salem has not appealed any of the decisions in state court as far as this Court is aware. Salem alleges that the only truthful reason Defendants alleged in the Termination Motions in support of their argument that Salem engaged in the unlicensed practice of law was that Salem has a residence in Illinois. In contrast to this allegation, the Termination Motions include numerous other reasons to support the argument that he has engaged in the unlicensed practice of law, including “reporting his Illinois address as his registration address with New York, incorporating and operating a law firm in Illinois, and continuously practicing law in this State over an extended period of time.” Doc. 21, Ex. B ¶ 21.

         Salem alleges that the ARDC has previously investigated him for the unlicensed practice of law and, on April 15, 2013, “declar[ed] that Salem did not violate Rule 5.5 of the Illinois Rules of Professional Conduct.”[3] Doc. 21 ¶ 36. The April 15, 2013 letter from the ARDC states that the ARDC concluded its review of the matter and decided not to pursue it further. Salem alleges that the ARDC did not have any new evidence that he violated Rule 5.5 between 2013 and July 17, 2015.[4] Salem alleges that the “only difference between the 2013 ARDC complaint” and the July 17, 2015 decision to prevent him from paying the Prime Builders Fee “is Brodsky.” Doc. 21 ¶ 23.

         Finally, on October 15, 2015, while Salem and Kozlov were attending a hearing in Cook County Circuit Court on one of the Termination Motions, Kozlov assaulted Salem by raising his hand up over Salem with the intent to strike Salem’s arm after Salem refused to return a copy of a draft order to Kozlov.


         A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the complaint, not its merits. Fed.R.Civ.P. 12(b)(6); Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). In considering a Rule 12(b)(6) motion to dismiss, the Court accepts as true all well- pleaded facts in the complaint and draws all reasonable inferences from those facts in the plaintiff’s favor. AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th Cir. 2011). To survive a Rule 12(b)(6) motion, the complaint must not only provide the defendant with fair notice of a claim’s basis but must also be facially plausible. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (internal citations omitted). “The plausibility standard is not akin to a ‘probability requirement, ’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678.

         Under federal pleading rules, a plaintiff is not limited to nor bound by the legal characterizations of his claims contained in the complaint. A claim can survive as long as the facts alleged would support relief. Forseth v. Vill. of Sussex, 199 F.3d 363, 368 (7th Cir. 2000); Kirksey v. R.J. Reynolds Tobacco Co., 168 F.3d 1039, 1041 (7th Cir. 1999). However, once a motion to dismiss is filed, in response plaintiff must establish the legal basis for his claims and provide a sufficient legal argument in support of them. Kirksey, 168 F.3d at 1041-42; Lekas v. Briley, 405 F.3d 602, 614-15 (7th Cir. 2005). Failure to do so results in dismissal of the complaint. Id.


         Salem’s allegations are, at their core, an attempt to get a second bite at the apple. Dissatisfied with the termination of his authorization to appear pro hac vice in four Illinois state court matters, Salem alleges that the he did not receive due process in one of those matters- Prime Builders-and that he, as a class of one, was discriminated against in violation of the Fourteenth Amendment, Privileges and Immunities Clause, and Dormant Commerce Clause of the United States Constitution. In an apparent attempt to circumvent res judicata effects of the termination decisions, Salem now targets only Kozlov and the ARDC’s refusal to accept his payments of the Prime Builders Fee required by Rule 707. For the reasons discussed below he fails to state a claim, and the Court declines to exercise jurisdiction over his remaining state court claim.

         I. 42 U.S.C. ยง 1983 - Procedural Due ...

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