O'Dea v. Conagra Foods, Inc.

Filing 10

ORDER denying 9 Motion for Reconsideration. Signed by Judge M. James Lorenz on 1/30/2014. (sjt)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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11 BRIAN O’DEA, on behalf of himself and
all others similarly situated,
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Plaintiff,
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v.
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CONAGRA FOODS, INC.,
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Defendant.
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Civil No. 13cv3158 L (NLS)
ORDER DENYING MOTION FOR
RECONSIDERATION [doc. #9]

The Civil Local Rules for the United States District Court for the Southern District of

18 California allow for a “member in good standing of, and eligible to practice before, the bar of
19 any United States court or of the highest court of any state or of any territory or insular
20 possession of the United States, who is of good moral character, and who has been retained to
21 appear in this court but who is “not eligible for admission under Civil Local Rule 83.3.c,” to
22 obtain pro hac vice status, i.e., to be allowed to participate in a particular case in that jurisdiction.
23 CIV. L. R. 83.3. The Rule provides that an attorney seeking pro hac vice status “must also
24 designate in the application a member of the bar of this court with whom the court and
25 opposing counsel may readily communicate regarding the conduct of the case and upon whom
26 papers will be served.” Id. (emphasis added). Membership in the bar of this court is further
27 described in Local Rule 83.3.c.5:
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A judge to whom a case is assigned may in that case, in the judge's discretion,
require an attorney appearing in this court pursuant to the provisions of this rule
and who maintains an office outside of this district to designate a member of the
bar of this court who does maintain an office within this district as co-counsel
with the authority to act as attorney of record for all purposes. The attorney must
file with such designation the address, telephone number and written consent of
such designee.

5 Civ. L. R. 83.3.c.5 (emphasis added).
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In the case of O’Dea v. Conagra Foods, Inc., Case No. 13cv3158 L (NLS), which is

7 currently pending before the undersigned, defendant’s counsel, Patrick E. Brookhouser, Jr. and
8 the firm McGrath North Mullin & Kratz, PC LLO, applied for pro hac vice status. The pro hac
9 vice application designated David R. Clark, The Clark Law Firm, APLC, as local counsel. The
10 Clark Law Firm is located in Meadow Vista, CA 95722. Meadow Vista is not located in the
11 Southern District of California. Instead, Meadow Vista is in Placer County, California and is in
12 the Eastern District of California. 28 U.S.C. §84(b). The pro hac vice application was deficient
13 on its face in that David R. Clark does not maintain an office within this district. Accordingly,
14 the application was denied.
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Attorney Clark telephoned chambers to ask for an informal reconsideration of the denial

16 of the pro hac vice application. He was advised that any request for judicial action must be in
17 writing. See Civil Local Rule 83.9: “Except as otherwise provided by law, attorneys or parties to
18 any action or proceeding must refrain from writing letters to the judge, or otherwise
19 communicating with the judge unless opposing counsel is present. All matters to be called to a
20 judge's attention should be formally submitted as hereinafter provided.”
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On January 27, 2014, defendant Conagra moved for reconsideration of the Order denying

22 the pro hac vice application. In its motion, Attorney Clark noted that he has been a continuous
23 35-year member of the bar of this Court, and was “until recently” a partner residing in the San
24 Diego office of Higgs, Fletcher & Mack until he relocated his practice to Northern California.
25 (Mtn at 1.) Counsel also notes that with the availability of electronic filing and service, “it is no
26 longer necessary for counsel to have a physical location in San Diego.” (Id.) Although counsel
27 believes the necessity for the designation of local counsel who maintains an office within the
28 district is obsolete and “there is no need to have a physical office to discharge those obligations
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1 in San Diego,” the Rule remains in place and compliance is expected. (Id. at 2.)
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Finally in what appears to be an attempt to come within the Rule, Mr. Clark states that he

3 “hereby agree[s] to designate a local office where he can also be reached, if necessary, at this old
4 firm, Higgs, Fletcher & Mack at 401 West A Street, Suite 2600, San Diego, CA 92101.” (Id.)
5 But the mere designation of a local office does not circumvent the requirement that local counsel
6 “maintain[s] an office within this district.” CIV. L. R. 83.3.c.5.
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Counsel’s improper ex parte communication with the Court, his lack of respect for

8 compliance with the Civil Local Rules, and his apparent willingness to suggest a sham solution
9 in order to appear as local counsel convinces the Court that Mr. Clark is not an appropriate
10 designated local counsel.
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Based on the foregoing, IT IS ORDERED denying defendant’s motion for

12 reconsideration.
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IT IS SO ORDERED.

14 DATED: January 30, 2014
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M. James Lorenz
United States District Court Judge

17 COPY TO:
18 HON. NITA L. STORMES
UNITED STATES MAGISTRATE JUDGE
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