Reech v. Sullivan et al
Filing
16
ORDER granting 3 Motion to disqualify counsel; denying 5 Motion to Appear Pro Hac Vice. Signed by Magistrate Judge Linda R. Anderson on 4/5/2018. (ACF)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
CHRISTY REECH,
PLAINTIFF
VS.
No. 3:18-cv-35-HSO-LRA
GLEN SULLIVAN, SHELLEY SULLIVAN,
WARD’S OF SEMINARY, INC.,
DEFENDANTS
ORDER
Before the Court are Defendants’ Motion to Disqualify Counsel [3] and the Pro
Hac Vice Application of Attorney William Most [5]. Having considered the parties’
submissions, reviewed the relevant legal authorities, and heard oral argument from
counsel, the Court finds as follows.
FACTUAL AND PROCEDURAL BACKGROUND
A civil complaint was filed on behalf of Plaintiff Christy Reech on January 17,
2018 [1]. Plaintiff is a Louisiana resident [1 at p. 3]. The complaint names three
Defendants: Glen Sullivan, Shelley Sullivan, and Ward’s of Seminary, Inc. [1]. The
individual Defendants are alleged to reside in Mississippi, and the corporate
Defendant is alleged to be in good standing in Mississippi [1 at p.3].
The electronic signatures of two attorneys appear on the complaint [1 at p.14].
Both attorneys, Jacqueline K. Hammack and William Most, list business addresses
in New Orleans, Louisiana [1 at p.14]. Attorney Hammack is admitted to practice
law in Mississippi, but Attorney Most is not admitted to practice law in Mississippi
[1 at p.14]. There is a notation under Attorney Most’s electronic signature that reads,
“pro hac vice to be filed” [1 at p.14].
PD.23172342.1
Two days after the complaint was filed, Attorney Most executed documents
intended to be used in this litigation [3-1]. The first document is entitled “NOTICE
OF A LAWSUIT AND REQUEST TO WAIVE SERVICE OF A SUMMONS” and
includes Attorney Most’s electronic signature and contact information [3-1]. As the
name suggests, the notice explains to Defendants that a lawsuit has been filed and
that Plaintiff requests that Defendants waive their right to service of process [3-1].
The notice specifically states that, “[i]f you return the signed waiver, I will file it with
the court” [3-1]. The second document is entitled “WAIVER OF THE SERVICE OF
SUMMONS” and includes a line designated for the “name of the plaintiff’s attorney”
[3-1]. Only Attorney Most’s name appears on the line [3-1].
Attorney Most e-mailed both documents to Defendants’ counsel [3-1]. The email states, in pertinent part, that “my client instructed me to go ahead and get the
case on file” [3-1]. The e-mail further states that “[y]ou can return the signed waiver
forms to me via email” [3-1].
Defendants’ counsel did not respond to Attorney Most’s e-mail or return the
waivers.
Instead, on January 22, 2018, Defendants’ counsel entered a limited
appearance in this case “for the purpose of contesting an appearance made by
Attorney William Most” [2]. That same day, Defendants filed a motion requesting
that Attorney Most be disqualified [3].
Four days after Defendants filed their disqualification motion, Attorney Most
applied to this Court for pro hac vice admission [5]. Defendants promptly objected to
Attorney Most’s application, and Plaintiff timely responded in opposition to
2
Defendants’ disqualification motion [6-8].
Before Defendants filed their reply,
Attorney Hammack re-sent notice and waiver documents to Defendants’ counsel, this
time including only her name rather than Attorney Most’s name [9-1]. Defendants
filed their reply on February 2, 2018, and this Court conducted an in-person hearing
on February 8, 2018 [9; 2/9/2018 Text Entry].
DISCUSSION
The general rule governing legal practice before this Court is found in Local
Rule 83.1(d)(2), which provides that a nonresident attorney must either be a member
of the Mississippi Bar who is admitted to practice before the Mississippi Supreme
Court or be admitted pro hac vice. The corollary is Local Rule 83.1(d)(7)(E), which
provides that pro hac vice “admission should be denied [if] the applicant ha[s], before
the application, filed or appeared in the federal court without having secured
approval under these rules.” These rules raise two questions pertinent to the instant
dispute: (1) whether Attorney Most made an unauthorized appearance in this case
and, if so, (2) whether the unauthorized appearance should result in disqualification.
Although the Local Rules do not define the word “appearance,” that word has
a settled meaning under Mississippi law. Over 15 years ago, the Mississippi Supreme
Court affirmed the denial of a pro hac vice request and issued the following warning
to non-resident attorneys: “[A]ttorneys are hereby noticed and cautioned that a
foreign attorney will be deemed to have made an appearance in a Mississippi lawsuit
if the foreign attorney signs the pleadings or allows his or her name to be listed on
3
the pleadings.” See In re Williamson, 838 So.2d 226, 235 (Miss. 2002).1 The warning
also has been codified through MISSISSIPPI RULE
OF
APPELLATE PROCEDURE
46(b)(1)(ii), which provides that “‘[a]ppearance’ shall include the appending or
allowing the appending of the foreign attorney’s name on any pleading or other paper
filed or served[.]”
Plaintiff does not dispute that the inclusion of Attorney Most’s electronic
signature on the complaint constitutes an “appearance” under the just-recited
authority. Instead, Plaintiff argues that an “appearance” means something different
in Mississippi’s federal courts than it does in Mississippi’s state courts. The Fifth
Circuit recently addressed this same issue in Isom v. Valley Forge Insurance
Company, 2017 WL 6729968 (5th Cir. Dec. 29, 2017).
There, the Fifth Circuit
affirmed Judge Starrett’s disqualification determination, which relied on the
Mississippi Supreme Court’s definition of “appearance” in the In re Williamson case.
See Isom, 2017 WL 6729968 at *6. The Fifth Circuit supported its affirmance with
an acknowledgement that this Court’s Local Rules expressly incorporate the
MISSISSIPPI RULES OF PROFESSIONAL CONDUCT.
1
Id.
Like the two non-
Post-Williamson, the Mississippi Supreme Court repeatedly has stressed the
seriousness of making an unauthorized appearance. See, e.g., Estate of St. Martin v.
Hixson, 145 So.3d 1124, 1137 (Miss. 2014) (“[T]he consequences of an unauthorized
appearance in a Mississippi case would be for a court to deny [the attorney’s] right to
appear, possibly cite him for contempt, and refer the matter to the disciplinary counsel of
the Mississippi Bar for appropriate action under Mississippi Code Section 73–51–1.”);
Dinet v. Gavagnie, 448 So.2d 1281, 1284-86 (Miss. 2007) (ordering that nonresident
attorney be reported to Louisiana Bar); Mitchell v. Progressive Ins. Co., 965 So.2d 685
(Miss. 2007) (“This Court finds that Wiedemann’s violation of Mississippi Rule of
Appellate Procedure 46 and Mississippi Rule of Civil Procedure 11, in attempting to file
the December 5, 2005, complaint without being admitted pro hac vice, may merit
discipline by the Mississippi and/or Louisiana State Bar.”).
4
resident attorneys in Isom whose names appeared on the complaint, Attorney Most’s
name and electronic signature constitute an “appearance” in this lawsuit. Compare
[1 at p.14] with Isom, 2017 WL 6729968 at *6.
Moreover, Attorney Most’s participation in this litigation did not end when the
complaint was filed. Attorney Most executed notices and requests for waiver of
service of process, directed them to Defendants, and requested that they be returned
to his attention [3-1].
The documents do not include the signature or contact
information of Attorney Hammack [3-1]. Rather, they include only the signature and
contact information of Attorney Most [3-1]. The documents specifically state that,
“[i]f you return the signed waiver, I will file it with the court” [3-1]. Attorney Most
made an “appearance” when he signed the complaint, but the notice and waiver
documents show that additional unauthorized acts were made in furtherance of
Plaintiff’s complaint.
Having determined that Attorney Most made an unauthorized appearance in
this case, the Court now turns to the penalty for having done so. The Court rejects
Plaintiff’s argument for the review standard that applies to disqualification motions
in the attorney/conflict or attorney/witness contexts. The Fifth Circuit has explained
that, in a pro hac vice situation, “district courts ‘enjoy broad discretion to determine
who may practice before them.’” Isom, 2017 WL 6729968 at *6 (quoting United States
v. Nolen, 472 F.3d 362, 371 (5th Cir. 2006)). Importantly, how a district court utilizes
its discretion must be guided by the correct legal standard. See, e.g., Klier v. Elf
Atochem N. Am., Inc., 658 F.3d 468, 474 (5th Cir. 2011) (“By definition, a district
5
court abuses its discretion when it makes an error of law or applies an incorrect legal
standard.”).
The Local Rules’ use of the word “should” results in Attorney Most’s mandatory
disqualification from this case.
See L.U.CIV.R. 83.1(d)(7)(E) (emphasis added)
(“[A]dmission should be denied [if] the applicant ha[s], before the application, filed
or appeared in the federal court without having secured approval under these rules.”).
Because no exceptions appear in the text of Local Rule 83.1(d)(7)(E), this Court
declines Plaintiff’s invitation to create what is not there. Cf. A. Scalia & B. Garner,
READING LAW: THE INTERPRETATION OF LEGAL TEXTS § 8, p. 93 (2012)
(explaining that courts should not “elaborate unprovided-for exceptions to a text”
because, if the drafters “had intended to provide additional exceptions, [they] would
have done so in clear language”). In a related context, the Fifth Circuit held that
Application Note 6 of the Sentencing Guidelines imposed a mandatory requirement,
despite the Note’s failure to include the words “must” or “shall.” See United States v.
Alexander, 100 F.3d 24, 26-27 (5th Cir. 1996) (abrogated by the revised Sentencing
Guidelines). Alexander relied on the same principle articulated by the previouslycited treatise, specifically stating that “[n]o qualifications or reservations are
suggested” in the Note. Id. at 27. The same mandatory application rings true for
Local 83.1(d)(7)(E).
Even if the Court were to consider Local Rule 83.1(d)(7)(E) as permissive, given
the facts in this case and in light of caselaw, the results here would be the same.
Plaintiff’s oppositional response offers no valid justification for Attorney Most’s
6
unauthorized appearance, and Plaintiff makes no attempt to explain Attorney Most’s
execution of the notice and waiver documents. This case, in the Court’s view, involves
greater unauthorized participation than the disqualifications that were rendered in
Isom.
The Court recognizes that as a practical matter, attorneys often file the
complaint with his or her name listed and noting that a motion to be admitted will be
filed. In fact, as Plaintiff pointed out, this has been done numerous times by attorneys
in Defendants’ attorney’s own law firm. There was certainly no attempt by Attorney
Most to misrepresent his status to this Court. Motions to be admitted pro hac vice
are normally granted in such cases but only because no party objects; the rule is
considered waived. However, when an objection is made, the Court is reluctant to
render the local rule meaningless. A ruling in Plaintiff’s favor would amount to a
judicial abolishment of the rule.
“The ability to appear pro hac vice is a privilege, not a right[.]” See, e.g., Blitz
Telecom Consulting, LLC v. Peerless Network, Inc., 2016 WL 6125585, *2 (M.D. Fla.
2016).
Allowance of the privilege is unwarranted here.
Defendants’ motion to
disqualify [3] is GRANTED, and Attorney Most’s pro hac vice application [5] is
DENIED.
In addition to disqualification, Defendants request that Plaintiff’s complaint
be stricken from the record. Because Plaintiff’s complaint was signed by Attorney
Hammack, a lawyer admitted to practice in Mississippi, the Court declines to strike
the complaint. See, e.g., Dinet, 448 So.2d at 1284-86 (Miss. 2007) (ordering that
7
nonresident attorney be reported to Louisiana Bar but reversing trial court’s decision
to dismiss case). Defendants’ strike request is DENIED.
SO ORDERED, this the 5th day of April 2018.
S/ Linda R. Anderson
UNITED STATES MAGISTRATE JUDGE
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?